m 


i  \ 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


^. 


-t 


.   ^'  A. 


THE  LAW  OF 

SALES 


BY 

JOHN  BARKER  WAITE 

PROFESSOR  OF   LAW.  UNIVERSITY  OF   MICHIGAN 


CHICAGO 

GALLAGHAN  &  COMPANY 

1921 


X 


T 


Copyright  1921 

by 

CALLAGHAN   &  COMPANY 


^li\s^ 


PREFACE 


To  derive  the  best  frorti  any  book,  one  must  read  it 
with  knowledge  of  the  ideas  which  underlie  it  and  of  the 
purpose  with  which  it  was  produced.  Every  sincere  book 
relating  to  law  is  inevitably  and  distinctly  colored  by  its 
author's  idea  of  what  law  is.  Therefore  it  seems  proper 
for  me  to  present  my  own  views. 

I  conceive  law  to  be  the  aggregation  of  rules  which 
courts  of  justice  feel  themselves  more  or  less  obligated  to 
follow  in  deciding  controversies.  To  some  extent  these 
rules  are  formulated  and  declared  by  legislative  author- 
ity. Most  of  them,  however,  have  been  evolved  by  judges 
themselves. 

These  latter  rules  are  not  always  easy  to  formulate; 
if  they  were,  there  would  be  no  need  for  real  text-books. 
Even  the  precise  utterances  of  various  judges  can  not 
always  be  accepted  as  rules.  I  believe  that  no  judge  has 
power,  either  practically  or  theoretically,  to  bind  other 
judges  by  any  declaration  of  rule  or  command,  but  that 
the  only  obligation  felt  by  courts  is  the  obligation  to  con- 
form to  prior  judicial  action.  It  is  therefore  prior  judi- 
cial conduct  under  given  circumstances  which  determines 
the  action  of  later  judges,  rather  than  prior  declarations 
as  to  what  such  conduct  ought  to  be. 

In  the  great  majority  of  cases,  actual  decision  does 

accord  with  the  mere  verbal  declarations  of  what  ought 

iii 


iv  PREFACE 

to  be  done.  But  not  infrequently  a  judge  in  deciding  the 
case  before  him  will  state  what  he  would  have  done  had 
the  facts  been  otherwise.  He  states  what  he  believes  to 
be  a  rule,  without  being  called  to  act  upon  it.  In  many 
other  cases  judges  have  rendered  decisions  that  actually 
conform  to  prior  related  decisions,  but  have  given  as  rea- 
son for  the  decision  some  assumed  rule  which  is  really 
inconsistent  with  the  earlier  ones.  These  dicta,  there- 
fore, can  not  blindly  be  accepted  as  rules  of  law. 

Rules  of  law,  like  the  laws  of  any  other  science,  must 
be  deduced  from  a  critical  analysis  and  study  of  legal 
phenomena.  And  these  phenomena,  to  my  mind,  are  the 
decisions  actually  rendered  by  courts  of  justice.  I  do 
not  mean  that  the  comments  and  stated  reasons  of  the 
judges  may  be  disregarded.  On  the  contrary,  they  are 
an  intrinsic  part  of  the  phenomena  of  decision.  They 
must  be  considered  and  given  the  fullest  effect  of  guid- 
ance. But  if  one  admits  that,  while  judges  may  act  on 
each  case  as  it  comes  before  them,  they  may  not  com- 
mand other  judges  how  to  act,  one  must  of  necessity 
deduce  the  rule  of  action  primarily  from  the  acts  them- 
selves. Hence  I  have  sought  always  for  some  judicial 
custom  of  decision,  as  indicating  the  rule  of  law  more 
truly  than  does  judicial  speech  alone. 

In  another  respect,  also,  I  have  looked  beyond  the  mere 
words  of  decisions.  Judicial  opinions  often  merely  state 
the  facts  of  a  case  as  though  they  were  in  themselves  a 
self-evident  reason  for  the  decision.  No  rule  at  all  is 
stated.  A  text  writer  can  follow  this  example  and  merely 
state  the  rule  to  be  that  when  facts  are  thus  and  so  the 
decision  will  be  thus  and  so.  But  if  law  is  truly  the  per- 
fection of  reason,  there  should  be  a  rational  basis  for  all 


PREFACE  V 

decisions — some  reason  founded  on  utility,  or  on  consist- 
ency with  other  and  correlated  rules  of  law.  Only  through 
knowledge  of  these  reasons — whether  they  rest  in  the 
utility  of  consistency  only,  or  of  something  else — can  a 
lawyer  possibly  predict  what  will  be  the  decision — or 
advise  the  court  what  should  be  the  decision — in  cases  of 
somewhat  novel  facts.  It  is  only  through  deduction  of 
the  reason,  the  rule  for  decision,  from  study  of  many  deci- 
sions that  the  essential  facts  can  possibly  be  separated 
from  the  immaterial. 

It  is  just  this  analysis,  it  seems  to  me,  which  distin- 
guishes a  text-book  from  a  digest.  The  latter  presents 
the  phenomena.  That  is,  it  gives  the  facts  and  decisions 
of  cases.  The  former  takes  enough  of  these  phenomena 
for  reasonable  certainty  and  attempts,  through  inductive 
analysis,  to  present  the  underlying  causes  of  the  deci- 
sions for  use  in  future  cases.  If  it  does  not  do  this,  it  is 
only  a  compilation  itself.  A  text-book  and  a  digest  are, 
therefore,  not  substitutes  for  each  other,  but  one  supple- 
ments the  other. 

The  law  of  Sales  has  already  been  so  well  analyzed  and 
presented  by  men  like  Williston  and  Meechem  that  a  new 
book  is  hardly  justified  so  far  as  substance  of  the  rules 
alone  is  concerned.  But,  inasmuch  as  students  of  any 
science  disagree  more  or  less  as  to  the  causes  of  its  phe- 
nomena, it  is  always  possible  that  a  new  writer  may  bring 
something  of  value  by  way  of  explanation  and  of  reason 
for  the  rules. 

There  is  also  possible  value  in  a  new  manner  of  pre- 
senting an  old  subject-matter.  Some  books,  for  instance, 
group  rules  of  law  according  to  their  relation  to  certain 


vi  PREFACE 

concrete  things,  such  as  the  "law  of  electricity"  and  the 
"law  of  automobiles."  Likewise,  they  group  the  rules 
of  a  particular  subject  around  certain  things,  or  certain 
acts,  as,  in  Sales,  bills  of  lading,  or  delivery  of  posses- 
sion. 

On  the  other  hand,  the  rules  may  be  grouped  according 
to  persons  affected,  which  is  the  plan  I  have  chosen. 
Each  rule  may  itself  be  discussed  as  relating  to  a  legal 
right  of  one  person,  a  lack  of  right  in  another,  or  a  legal 
power  of  a  third.  For  example,  the  transfer  of  a  bill  of 
lading  by  an  insolvent  buyer  may,  in  some  circumstances, 
terminate  the  seller's  right  to  retake  possession  of  the 
goods  while  still  in  transit.  This  one  legal  result  can  be 
discussed  as  a  right  of  the  buyer  of  the  bill  of  lading  to 
receive  the  goods  themselves,  as  a  lack  of  right  in  the 
original  seller  to  retake  possession,  or  as  a  power  of  the 
original  buyer  to  cut  off  his  seller's  right  of  stopping  the 
goods.  Or  the  one  rule  can  be  discussed  by  repetition 
under  all  three  forms.  This  last  method  has  the  advan- 
tage of  the  clarity  which  comes  from  demonstrating  a 
matter  in  all  its  aspects.  Nevertheless,  it  is  not  at  all 
essential  to  completeness  of  presentation  and  does  re- 
quire a  great  amount  of  space.  For  the  sake  of  brevity, 
I  have  discussed  each  rule  only  once,  and,  so  far  as  prac- 
ticable, I  have  treated  each  rule  in  the  aspect  of  a  right 
of  some  person.  In  some  instances,  however,  notably  as 
to  the  rights  of  original  owners  against  persons  other 
than  the  buyer,  it  seemed  advisable,  for  the  sake  of  order- 
liness, to  put  the  discussion  under  lack  of  right  of  the 
other  person. 

Although  discussing  any  particular  rule  once  only 
saves  considerable  space,  it  does  force  upon  the  reader 


PREFACE  vii 

the  task  of  making  his  own  comparisons  between  differ- 
ent rights,  and  requires  him  to  remember  that  any  right 
of  one  person  connotes  a  complementary  lack  of  right  in 
other  persons. 

In  presenting  my  own  idea  of  what  law  is  I  have  said 
that  it  is  the  rules  which  courts  feel  more  or  less  obliged 
to  follow.  I  do  not  believe  that  even  in  theory  courts  are 
absolutely  bound  to  follow  the  rules  of  precedent.  Actu- 
ally, it  is  indisputable  that  they  do  modify  and  depart 
from  established  rules  when  they  believe  that  economic 
utility  so  warrants.  "Witness,  for  instance,  the  develop- 
ment of  rules  as  to  implied  warranty  in  sales  of  food. 
If  courts  do  thus  consider  the  economic  effect  of  a  deci- 
sion, and  consciously  or  subconsciously  depart  from  the 
letter  of  established  rules  at  the  dictate  of  pragmatic  con- 
siderations, one  who  would  predict  the  decision  in  any 
case  must  do  more  than  familiarise  himself  with  the  rules 
of  precedent  "alone.  He  must  observe  and  understand  the 
trend  of  change  which  is  taking  place  in  those  rules.  He 
must  be  a  student  of  socio-economic  rules  and  theories 
as  well  as  of  the  rules  of  legal  precedent. 

It  is  not  improbable  that,  eventually,  complete  text- 
books will  include  an  analysis  of  economic  and  social 
factors  hkely  to  affect  judicial  decision,  which  they  will 
correlate  with  their  discussion  of  precedent.  The  idea  is 
most  intriguing.  I  have,  myself,  however,  made  no 
attempt  to  do  this,  but  have  conventionally  left  to  the 
reader  the  contentious  question  whether  courts  may 
properly  depart  from  precedent  and,  when  they  do  so 
depart,  by  just  what  considerations  they  are  influenced. 

It  has  been  said  that  technical  text-books  are  neces- 


viii  PREFACE 

sarily  too  elementary  and  incomplete  to  be  of  much  value 
to  readers  already  trained  in  the  subject,  or  are  too  diffi- 
cult reading  for  untrained  students.  I  do  not  think  this 
is  true  of  books  on  law.  The  subject  is  full  of  terms,  to 
be  sure,  which  have  a  technical  connotation  unrecognized 
by  laymen,  and  many  rules  are  really  complexes  of  other 
more  elemental  rules  which  la^vyers  rather  take  for 
granted.  But  a  book  which  uses  words  and  phrases  in 
their  usual  sense  and  which  proceeds  sequentially  from 
elemental  principles  to  the  more  complex  ones  can  be 
clear  and  comprehensible  to  la}^  readers  and  yet  be  so 
detailed  in  its  subject-matter  as  to  serve  also  the  needs 
of  trained  practitioners. 

It  is  in  this  belief  that  I  have  written  what  follows, 
hoping  that  the  small  size  of  the  book  and  its  arrange- 
ment, without  necessarily  derogating  its  real  technical 
value,  will  make  it  more  available  to  some  readers  than 
a  more  voluminous  work  would  be. 

John  Barker  Waite. 
Aim  Arbor,  Michigan. 


TABLE  OF  CONTENTS 


CHAPTER  I 

GENERAL   PRINCIPLES 

PAGE 

Meaning  of  "Sale" 1 

Sale  Distinguished  from  Other  Transactions 3 

Subject  Matter  of  Sales 12 

Contractual  Features  14 

CHAPTER  II 

TRANSFER  OF  TITLE 
RULES  FOR  DETERMINING  THE  PASSING  OF  TITLE 

Passing  of  Title 16 

Intent  Governs  17 

Change  of  Possession  Not  Essential 17 

Payment  Not  Essential 19 

Presumptions  of  Intent 19 

Conditions  Precedent  to  Passing  of  Title 32 

"C.  0.  D." 35 

Rebuttal  of  Presumptions 38 

Expressed  Intent  39 

IDENTIFICATION  OF  PROPERTY  SOLD 

Specification  40 

Assent  to  Specification 44 

"Passing  of  Title  by  Specification 49 

Unspecified  Part  of  Specified  Mass 63 

Specified  Part  of  Larger  Mass 70 

Goods  Not  in  Existence 70 

Potential  Interests  80 

ix 


X  TABLE  OF  CONTENTS 

CHAPTER  III 

SELLER'S  REMEDIES  AND  RIGHTS 

BOTH  TITLE  AND  POSSESSION  RETAINED 

PAGE 

Breach  of  Contract 86 

Recovery  of  Purchase  Price 92 

TITLE  RETAINED,  BUT  POSSESSION  PASSED 

Breach  of  Contract 99 

Recovery  of  Purchase  Price 99 

Titular  Actions  102 

Recovery  of  Possession 102 

Suit  for  Price  After  Retaking  Possession 106 

Underlying  Theory  107 

POSSESSION  RETAINED,   BUT   TITLE  PASSED 

Recovery  of  Price 109 

Breach  of  Contract 110 

Seller's  Lien  Ill 

Enforcement  of  Lien — Resale 122 

Stoppage  in  transitu  130 

Effect  of  Stoppage 146 

NEITHER  TITLE  NOR  POSSESSION  RETAINED 

Recovery  of  Price 147 

Recovery  of  Possession 147 

Recovery  of  Value  of  Goods 148 

Rescission  Because  of  Fraud 148 

CHAPTER  IV 

BUYER'S  REMEDIES  AND  RIGHTS 
NEITHER  TITLE  NOR  POSSESSION  ACQUIRED 

Breach  of  Contract 152 

Recovery  of  Money  Paid 157 

Inspection  Before  Accepting  Title 157 

Inspection  Before  Payment 166 

Performance  of  Conditions  by  Seller 168 

POSSESSION,  BUT  NOT  TITLE,  ACQUIRED 

Right  to  Keep  Possession 176 


TABLE  OF  CONTENTS  xi 

PAGE 

Right  to  Acquire  Title 176 

Right  to  Return  the  Goods 177 

Right  to  a  Return  of  Money  Paid 177 

TITLE,  BUT  NOT  POSSESSION,  ACQUIRED 

Titular  Action  '179 

Breach  of  Warranty 179 

CHAPTER  V 

REMEDIES  AND  RIGHTS  OF  THIRD  PERSONS 

PURCHASERS  FROM  A  PERSON  IN  POSSESSION,  BUT 
WITHOUT  TITLE 

In  General 201 

Pledgees 206 

When  Seller  has  a  Right  to  Acquire  Title 206 

Estoppel  208 

Particular  Types  of  Property 209 

Bills  of  Lading 210 

PURCHASERS   FROM    SELLER  REMAINING   IN   POSSESSION 
AFTER  PASSING  TITLE 

Fraud  as  a  Reason 212 

Policy  as  a  Reason 214 

What  Constitutes  Possession 218 

PURCHASERS   FROM    ONE  WHO   HAS   TITLE,   BUT   NOT 
POSSESSION 

Subject  to  Original  Owner's  Rights 219 

Purchasers  of  Bill  of  Lading 221 

Pledgees  223 

PURCHASERS    FROM   ONE  WHO    HAS    POSSESSION   AND    A 
VOIDABLE  TITLE 

Purchasers  Not  in  Good  Faith 226 

What  Constitutes  a  Voidable  Title 227 


CHAPTER  VI 

THE  STATUTE  OF  FRAUDS 
CONTRACTS  AFFECTED  BY  THE  STATUTE 

Executory  Contracts 232 


xii  .  TABLE  OF  CONTENTS 

PAGE 

Contracts  to  Manufacture  and  Sell 233 

Exchanges  241 

Other  Contracts 242 

Subject  Matter  243 

Price  249 

MEMORANDUM  REQUIRED  BY  THE  STATUTE 

Character  of  the  Memorandum 250 

Purpose  of  the  Memorandum 251 

Signature  252 

Separate  Papers  255 

Contents  of  Memorandum 258 

Self-Explanation  of  Memorandum 261 

SATISFACTION  OF  THE  STATUTE  BY  ACCEPTANCE  AND 

RECEIPT 

"Receive"  and  "Accept"  do  not  Relate  to  Title 262 

Change  of  Position 264 

Mutuality  of  Intent : 265 

Receipt  and  Acceptance  Both  Essential 266 

Acceptance  266 

Receipt  and  Acceptance  of  Part  of  the  Goods 270 

SATISFACTION  OF  THE  STATUTE  BY  PAYMENT  OR  GIVING 

EARNEST 

Time  of  Payment 275 

Medium  of  Payment 276 

Mutuality  Required  277 

Through  Agents  278 

EFFECT  OF  FAILURE  TO  SATISFY  THE  STATUTE 

Does  Not  Destroy  the  Contract 278 

Contract  as  a  Defense 282 

APPENDIX 

AN  ACT  TO  MAKE  UNIFORM  THE  LAW   OF  SALES  OF  GOODS 

285 


THE  LAW  OF  SALES 


CHAPTER  I 

General  Principles 

The  law  of  Sales  is  concerned  essentially  with  the 
transfer  of  ownership  to  personal  property.  It  does  not 
include  the  origin  of  ownership  in  the  first  instance,  nor 
does  it  involve  the  character  of  the  rights  and  liabilities 
which  accrue  to  ownership.  It  comprises  only  the  trans- 
fer thereof  with  the  attendant  rights  and  liabilities, 
whatsoever  they  may  be,  from  one  person  to  another. 

Meaning  of  Sale. — ^A  sale  may  be  defined  as  the 
transfer  from  one  person  to  another  of  the  absolute  own- 
ership of  some  specific  chattel,  for  a  reciprocal  compensa- 
tion which  is  in  money  or  something  valued  by  the  par- 
ties in  terms  of  money. 

The  word  ''sale"  has  also  a  secondary  meaning,  in 
which  sense  it  implies  not  an  accomplished  transfer  of 
the  ownership,  but  an  agreement  to  transfer  it.  It  may 
thus  apply  to  an  agreement  which  has  been  performed, 
or  to  an  agreement  to  be  performed,  and  its  use  in 
either  significance  is  indiscriminate.  Thus  in  some 
cases  the  court  uses  ''sale"  and  "contract  of  sale"  as 
quite  different  from  "agreement  to  sell"  and  as  mean- 
ing actual  transfer  of  ownership.^  On  the  other  hand 
"sale"  is  often  used  in  reference  to  the  "contract" 
regardless  of  whether  the  contract  has  been  carried  to 
execution  or  not.  Thus  one  court  uses  it  in  saying,**  "In 
many  cases  of  sales  of  personal  property  it  is  a  very  nice 

1 — Low  V.  Pew,  108  Mass.  347;        wood  v.   Cutting  Packing  Co.,   76 
Oklahoma    Moline    Plow    Co.    v.       Cal.  212,  9  Am.  St.  199. 
Smith,  Okla.,  137  Pac.  285;  Black-  2 — Oliphant  v.  Baker,  5  Denio 

379. 


2  THE  LAW  OF  SALES 

and  difficult  question  to  determine  •  •  •  whether  the 
title  has  passed." 

If  one  bears  in  mind  this  duplex  use,  as  indicating 
either  an  agreement  to  transfer  the  title,  or  an  ac- 
complished transfer,  he  will  find  no  real  confusion  aris- 
ing from  it,  despite  the  rather  remarkable  literal  confu- 
sion, because  the  context  practically  always  shows  the 
sense  in  which  it  is  employed.* 

No  definition  is  wholly  clear  unless  all  the  terms  by 
which  it  is  expressed  are  themselves  definite  and  precise. 
In  defining  **sale"  as  the  transfer  of  ownership,  one  is 
met  at  the  outset  by  an  uncertainty  as  to  just  what  con- 
stitutes **  ownership. "  In  the  abstract  it  may  be  defined 
as  the  fundamental  right  to  enjoyment  of  the  particular 
thing  to  which  it  is  said  to  attach.  (It  is  obvious 
that  the  terms  '* right,"  ''privilege,"  ''power,"  and 
similar  expressions  are  not  used  here  in  any  precise 
sense,  such  as  that  of  the  so-called  Hohfeltian  terminol- 
ogy.) In  the  case  of  corporeal  property,  as  distinct  from 
mere  ' '  rights, ' '  enjoyment  has  always  been  so  completely 
predicated  on  physical  possession,  that  ownership  is  often 
defined  in  terms  of  possession,  and  is  the  fundamental 
right  to  possession  of  a  particular  piece  of  property.* 

But  in  addition  to  the  right  of  possession,  there  are 
other  powers,  privileges  and  duties  in  respect  to  things, 
which  are  recognized  by  the  courts.  Certain  of  these 
privileges,  etc.,  commonly  follow  as  a  matter  of  course 
from  ownership  or,  conversely,  an  o^vner  is  said  to  have 
certain  definite  privileges  and  liabilities.* 

3 — "S(3  feeble  and  precarious  sary  in  modern  times,  the  clumsy 
was  property  without  possession,  term  'special  property'  was  em- 
or  rather  without  possessory  rem-  ployed  to  denote  the  rights  of  a 
edies,  in  the  eyes  of  medieval  possessor  not  being  owner."  Pol- 
lawyers,  that  Possession  largely  lock  &  Wright,  "Possession,"  p.  5. 
usurped    not   only   the   substance 

but   the    name    of   Property,    and  4 — "The     term     'property'     al- 

when    distinction    became    neces-  though   in  common   parlance   fre- 

•See  Uniform  Sales  Act,  Section  1,  (1),  (2),  (3),  (4),  and  76,  "Sale". 


GENERAL  PRINCIPLES  3 

The  composite  whole  of  these  powers,  privileges  and 
duties  is  ordinarily  thought  of  as  constituting  ownership. 
Occasionally,  however,  it  transpires  that  certain  of  these 
component  powers,  privileges,  or  duties,  are  attributed  by 
courts  to  one  individual  while  the  others  are,  at  least  by 
imphcation,  attributed  to  another.  The  query  is  at  once 
presented,  whether  ''ownership"  can  be  di\'ided,  whether 
two  persons,  one  having  the  right  to  ultimate  possession 
and  the  other  having  different  rights  in  respect  to  the 
same  chattel,  can  both  be  called  ' '  owners ' '  of  it.  If  own- 
ership is  not  divisible,  so  that  they  can  not  both  be  owners, 
how  many  of  the  component  rights  usually  constituting 
"ownership,"  or  which  of  them,  are  absolutely  essential 
for  the  law  to  call  their  possessor  owner  f  No  attempt 
need  be  made  to  answer  this  question  here,  but  specific 
reference  to  it  is  necessary  because  knowledge  of  the 
question  is  itself  the  solution  of  much  confusion,  to  be 
pointed  out  later,  as  to  whether  or  not ' '  title ' '  has  passed 
when  certain  legal  powers  and  privileges  have  passed 
and  others  have  not.^ 

Sale  Distinguished  From  Other  Transactions. — A 
transfer  of  anything  less  than  enough  of  these  component 
rights  and  duties,  to  constitute  the  ownership — or, 
more  concretely,  a  transfer  of  anything  less  than  the 
fundamental  right  to  control  possession —  is  not  a  "sale" 
but  is  called  by  some  other  name  such  as  "bailment," 
"pledge,"  etc.  The  name  which  a  contract  gives  to  a 
particular  transaction  does  not  determine  the  number 

quently  applied  to  a  tract  of  land  504.  And  see  the  excellent  exposl- 

or  a  chattel,  in  its  legal  signifi-  tion  in  Some  Fundamental  Legal 

cance  means   only  the   rights  of  Conceptions.     23  Yale  L.  Jr.  16. 

the  owner  in  relation  to  it.     It  5_cf.,  "The  action  *  *  *  must 

denotes  a  right  over  a  determin-  be  brought  by  the  owner,  although 

ate  thing.    Property  is  the  right  the  ownership  need  not  be  abso- 

of  any  person  to  possess,  use,  en-  lute  but  may  be  that  of  a  bailee." 

joy  and  dispose  of  a  thing."  Eaton  Garvan  v.  N.  Y.  C.  Rr.,  210  Mass. 

V.  B.  C.  &  M.  R.  R.  Co.,  51  N.  H.  275. 


4  THE  LAW  OF  SALES 

and  character  of  the  powers  and  privileges  trans- 
ferred, but  the  name  is  itself  determined  by  the  num- 
ber and  character  of  the  powers  intended  by  the  parties 
to  be  transferred.  Therefore,  in  any  given  case 
the  inquiry  is  not  directly  whether  the  transaction  was 
intended  to  be  by  name  a  sale,  or  a  bailment,  or  a  pledge, 
but  rather,  what  powers,  etc.,  were  intended  to  be  trans- 
ferred. The  answer  to  this  question  can  not  be  deter- 
mined by  any  rule  of  thumb.  Each  case  must  be  decided 
upon  its  own  particular  circumstances.  All  that  can  be 
said  is  that  the  real  or  apparent  intent  of  the  parties 
will  control  and  is  the  thing  to  be  determined.  //  the 
parties  intended  the  transaction  to  pass  the  ownership 
of  the  property  the  courts  will  call  the  transaction  a 
sale  and  give  it  effect  as  such.  7/  they  intended  to  con- 
vey powers  less  than  complete  ownership  the  courts  will 
call  it  something  less  than  a  sale  and  give  it  only  such 
effect  as  was  intended. 

-By  Whom  Distinction  Is  Made. — The  real  intention 


of  the  parties  being  the  determinative  issue,  it  would 
seem  properly  a  fact  to  be  determined  by  the  jury.^ 

It  is  the  province  of  the  court,  however,  to  decide,  and 
to  instruct  the  jury  accordingly,  just  what  rights  and 
powers  the  parties  must  have  intended  to  transfer 
to  have  intended  a  transfer  of  ownership  and,  con- 
versely, what  reservation  of  powers  in  the  transferor 
constitutes  a  withholding  of  ownership  from  the  trans- 
feree. Courts  sometimes  speak  as  though  such  reserva- 
tion or  transfer  of  particular  powers  showed  intent. 
This  transfer  or  reservation  of  particular  powers  con- 
stitutes as  a  matter  of  law  a  transfer  or  retention  of 
ownership  because  it  is  incompatible  with  the  legal  idea 

6 — Rauber  v.  Sundback,  1  S.  D.       Cook  v.  Lion  Fire  Ins.  Co.,  67  Cal. 
268;  Crosby  v.  Del.  &  Hud.  Canal       368;  Webster  Bros.  Milling  Co.  v. 
Co.,  119  N.  Y.  334;    Id.  128  N.  Y.       Bingham,  14  Ariz.  50. 
641;    Id.    141    N.    Y.    589;    Brown 
Bros.  V.  Gilliam,  53  Mo.  App.  376; 


GENERAL  PRINCIPLES  5 

of  ownership  in  the  other  person.  The  lack  of  pre- 
cision in  speaking  of  the  matter  leads  some  courts  to 
say  that  because  the  parties  intended  certain  powers 
or  duties  to  be  in  one  party  the  title  is  in  him,  while 
other  courts  instruct  the  jury  that  if  they  find  ^hose 
particular  powers  or  duties  were  intended  to  be  in  one 
person  they  must  find  that  the  parties  intended  title 
to  be  in  him.  The  one  thus  appears  to  make  title 
a  matter  of  determination  by  the  court  from  admitted 
facts,  the  other  appears  to  leave  it  to  the  jury  as  a  matter 
of  intent.  But  it  may  be  observed  that  the  result  is  the 
same  whether  the  court  deduces  it  for  itself  from  pre- 
liminary facts  already  ascertained,  or  orders  the  jury 
so  to  find  upon  the  same  preliminary  facts.  It  is  essen- 
tially these  preliminary  facts,  that  is  to  say,  the  par- 
ticular powers  and  privileges  which  the  parties  intended 
to  pass  or  not  to  pass,  which  must  be  ascertained  by  the 
jury.  If  the  intent  to  pass  certain  rights  and  powers  is 
admitted  by  the  parties,  or  the  court  thinks  it  could  not 
be  disputed,  the  court  can  decide  "what  name  shall  be 
given  the  transaction,  as  a  matter  of  law;  but  if  there 
is  dispute  as  to  what  rights  and  powers  the  parties  in- 
tended to  pass,  the  case  should  be  submitted  to  the 
jury  with  instructions  as  to  what  name  they  shall  give 
the  transaction  accordingly  as  they  find  that  the  parties 
intended  to  pass  or  not  to  pass  certain  rights  and  powers. 
When,  however,  the  entire  transaction  is  in  the  form  of  a 
written  contract,  the  court  will  ''construe"  the  contract 
and  decide  for  itself  the  question  of  what  particular 
rights,  powers  and  liabilities  the  parties  intended  to  pass, 
and  thus  practically  take  the  case  from  the  jury  entirely.' 

Rules  for  Distinction. — The  courts  have  laid  down 


a  number  of  propositions  as  to  what  particular  legal 

7— Fleet  V.  Hertz,  201  111.   594,  Oxley,  80   Ind.   580;   D.   M.   Ferry 

94  Am.  St.  192,  See  the  peculiar  &  Co.  v.  Hall,  188  Ala.  178,  L.  R. 

combination  in  Ginsburg  v.  Lum-  a.     1917     B     620     containing     a 

ber  Co.,  85  Mich.  439;  Reissner  v.  lengthy  annotation. 


6  THE  LAW  OF  SALES 

powers  the  parties  must  have  intended  to  transfer  to 
constitute  change  of  "ownership".  These  all,  however, 
have  the  common  characteristic  that  they  show  which 
person  was  intended  fundamentally  to  control  possession 
and  enjoyment  of  the  thing. 

The  law  is  simple  enough,  but  it  is  obvious  that  in 
many  cases  there  is  no  way  of  determining  absolutely 
what  the  parties  did  intend  in  this  regard.  The  issue 
becomes,  therefore,  merely  a  conclusion  of  mind  from  the 
particular  facts  and  the  facts  are  apt  to  be  so  incon- 
clusive that  two  wholly  fair  and  able  minds  may  differ 
absolutely.  It  is  this  possibility  of  difference  of  opinion 
by  two  courts  on  essentially  similar  cases  that  makes 
much  apparent  conflict.  It  is  not,  however,  a  conflict 
of  law,  in  the  sense  of  a  rule  of  determination,  but  only 
a  difference  of  conclusion  as  to  real  intent.  In  such 
cases  it  is  highly  probable  that  the  parties  had  no  real 
intent  as  to  title  at  all ;  did  not  think  of  anything  beyond 
the  immediate  and  obvious  facts  of  the  transaction.  A 
finding  of  "intent,"  therefore,  is  only  presumptive,  a 
legal  construction  from  the  facts.  Such  constructive  in- 
tent is  properly  a  matter  for  the  court  rather  than  for  the 
jury,  which  latter  is  supposed  to  ascertain  only  actual 
facts.  But  while,  as  noted  above,  very  many  courts  do, 
themselves,  make  the  finding  as  a  matter  of  law,  there  are 
no  established  rules  of  presumption  to  guide  them.  "What 
rules  there  are,  simply  declare  what  intent  shall,  or  shall 
not,  constitute  a  transfer  of  ownership,  leaving  court  or 
jury  to  ascertain  as  matter  of  conclusion  in  each  case  what 
was  the  particular  intent.® 

Bailment. —  Thus,  if  the  parties  intend  that  the 


particular  thing  transferred  shall,  sooner  or  later,  be 
returned  to  the  transferor  the  transaction  is  not  a  change 

8 — The    process    of    forming    a       Ex  parte  White,  L.  R.  6  Ch.  Ap. 
judicial    opinion    from    the    facts,       Cas.  397,  19  Wkly.  R.  488. 
without  guiding  rule.  Is  shown  in 


GENERAL  PRINCIPLES  7 

of  ownership  and  not,  therefore,  a  sale.®  And  this  is  true 
even  though  the  transferee  of  the  thing  is  to  do  something 
to  it,  even  to  the  extent  of  completely  altering  its  form.^° 
On  the  other  hand,  an  intention  that  the  transferee  need 
not  return  it  constitutes  a  transfer  of  title  despite,  the 
fact  that  he  is  to  return  something  of  like  kind,  or  any 
equivalent.''^  It  must  be  remembered,  however,  that  the 
real  intention  of  the  parties  in  this  respect  is  often  very 
difficult  to  decide  and  is  the  true  cause  of  dispute  in 
the  case.^* 

Sale  on  Approval. — If  the  parties  intend  that  the 


transferee  of  the  thing  shall  have  the  option  to  return 
it  or  to  keep  it,  the  question  of  ownership  depends 
upon  a  further  fact  of  intention,  namely  whether  the 
parties  intend  the  thing  to  be  returned  unless  the 
transferee  shall  choose  to  keep  it,  or  to  be  kept  by  the 
transferee  unless  he  shall  choose  to  return  it.  The  first 
intention  does  not  pass  title  until  the  option  is  exercised 
and  is  usually  called  a  "sale  upon  approval"  or  some 
synonymous  phrase.^'  The  second  intention  passes  title 
until  the  option  is  exercised,  and  is  usually  called  some- 
thing to  the  effect  of  a  "  sale  -with  privilege  of  return. '  '^** 
As  one  court  said,^^  "An  option  to  purchase  if  he  liked  is 

9— Bretz   v.   Diehl,   117   Pa.   St.  13— Fleet  v.  Heitz,  201  111.  594, 

589,  2  Am.  St.  Rep.  706.  94  Am.  St.  192,  (court  thought  in- 

10 — Wheat  delivered  to  trans-  tent  very  clear) ;  In  re  Miller  & 
feree  to  be  manufactured  into  Brown,  135  Fed.  871;  Hallidie  v. 
flour  and  returned  held  to  have  Sutter  St.  Ry.  Co.,  63  Cal.  575, 
remained  the  property  of  the  (^ourt  itself  appears  to  have  de- 
transferor,  Mallory  v.  Willis,  4  termined  the  question  of  intent). 
N.  Y.  76. 

11— Bretz  V.  Diehl,  117  Pa.  St.  14— Gottleib  v.  Rinaldo,  78  Ark. 

589,    2    Am.    St.    706;     Norton    v.  123,  6  n.  s.  273.     In  re   Miller  & 

Woodruff,  2  N.  Y.   153.  Brown,    135    F.    868;    Hallidie    v. 

12 — As  an  illustration  compare  Sutter  St.  Ry.  Co.,  63  Cal.  575. 
the  cases  of  Morton  v.  Woodruff, 

2  N.  Y.  153,  and  Mallory  v.  Willis,  15— Hunt  v.  Wyman,  100  Mass. 

4  N.  Y.  76.  198. 

*See  Uniform  Sales  Act,  Section  19. 


8  THE  LAW  OF  SALES 

essentially  different  from  an  option  to  return  a  purchase 
if  he  should  not  like.  In  one  case  the  title  will  not  pass 
until  the  option  is  determined ;  in  the  other  the  property 
passes  at  once  subject  to  the  right  to  rescind  and  return." 
So  also  when  the  parties  have  transferred  possession 
with  the  intention  merely  that  the  transferee  shall  either 
sell  the  goods  to  another  and  return  the  money,  or  shall 
return  the  goods,  the  law  is  that  title  has  not  passed  and 
there  is  no  sale.  The  person  in  possession  is  not  owner, 
but  only  an  agent  with  authority  to  pass  the  title.  Only 
when  he  does  pass  it  is  there  a  sale.  Conversely,  when 
the  transferee  of  the  goods  is  not  to  return  them  unless 
some  contingency  happens,  even  though  he  is  to  pay 
for  them  only  as  he  sells  them  to  some  one  else,  the  law 
is  that  title  has  passed.  The  former  is  usually  called 
** consignment  for  sale"  and  the  latter  *'sale  with  privi- 
lege of  return". 

Pledge. — If    the     transferee     is     expected     and 


intended  by  the  parties  to  return  the  thing  transferred 
unless  the  transferor  shall  fail  to  do  something,  (such 
as  repay  a  sum  of  money  received  from  the  transferee, 
within  a  stated  time,)  the  transaction  is  a  ''mortgage" 
or  ''pledge"  rather  than  "sale"  and  does  not  pass  title. 
The  fact  that  the  parties  have  themselves  called  the 
transaction  a  ' '  sale ' '  has  comparatively  little  effect  upon 
judicial  determination  of  their  intent  at  any  time,  but  it 
seems  to  be  of  especially  slight  effect  when  the  issue  is 
between  a  sale  or  mortgage  possibility. 

Gift.    Exchange. — To  constitute  a  sale  there  must 


be  not  only  a  transfer  of  title,  but  also  a  reciprocal  trans- 
fer of  money,  or  of  something  else  on  which  the  parties 
have  placed  a  money  value.  This  money  recompense  is 
not  necessary  to  a  transfer  of  title,  but  it  is  necessary 
to  constitute  the  transfer  of  title  a  "sale".  If  the  mone- 
tary recompense  is  absent  the  transaction  is  called  by 
some  otlicr  name.  If  there  is  nothing  given  in  exchange 
for  the  title  at  all,  the  transfer  is  usually  denominated 


GENERAL  PRINCIPLES  9 

a  "gift".  If  there  is  something  exchanged  for  it,  but 
no  monetary  value  is  fixed  upon  the  exchange,  the  trans- 
action is  called  a  ''barter  and  exchange". 

So  far  as  the  privileges,  powers  and  duties  which  con- 
stitute ownership  are  concerned  it  makes  no  difference 
whether  the  transfer  was  by  way  of  gift,  barter  and 
exchange  or  sale.  But  whether  the  transaction  is  a  sale 
or  a  gift  does  make  a  difference  when  the  question  is 
whether  the  transfer  has  taken  place  or  not.  And  even 
in  this  respect  there  is  no  difference  between  a  sale  and 
an  exchange.  In  the  case  of  a  gift  it  is  held  that  no 
title  passes  until  possession  has  been  transferred,  while 
in  the  case  of  either  sale  or  exchange  title  may  pass  be- 
fore transfer  of  possession — a  point  that  is  more  fully 
discussed  later. 

The  practical  importance  of  the  distinction  between 
sale,  gift  and  exchange  arises  whenever  one  of  those 
transactions  is  attended,  as  a  transaction,  with  certain 
consequences  which  do  not  follow  from  the  others.  Prac- 
tically all  cases  involving  a  real  difference  and  making 
the  name  important  arise  under  statutes  imposing  a  pen- 
alty upon  certain  "sales"  which  is  not  imposed  expressly 
upon  gifts  and  exchanges.  Thus,  a  statute  of  Arkansas 
prohibited  the  ''sale"  of  hquor  to  minors.  A  minor 
having  become  possessed  of  a  quantity  of  whiskey  which 
was  not  to  his  taste,  induced  a  saloon-keeper  to  give  him 
whiskey  of  a  different  quality  in  exchange  for  that  which 
he  already  possessed.  This  saloon-keeper  was  then 
indicted  for  selling  liquor  to  the  minor  contrary  to  the 
statute.  The  court  discharged  the  defendant,  on  the 
mere  statement  of  facts  as  admitted,  because  the  trans- 
action was  not  a  ' '  sale ' '  but  an  ' '  exchange ' ',  which  latter 
was  not  forbidden  by  the  statute.^®   Under  another  statute 

16 — Gillan    V.     State,    47    Ark.  "sell,    exchange,    give,    barter   or 
555.     The  court  was  undoubtedly  dispose  of"  liquor,  while  that  re- 
influenced  in  this  decision  by  the  lating   to   minors   used   the    word 
fact    that    a    statute    relating    to  "sell"  only. 
Inaians  expressly  forbade  one  to 


10  THE  LAW  OF  SALES 

which  forbade  any  one  either  to  "sell"  or  to  "give'* 
liquor  to  a  minor  it  was  held  that  one  was  not  guilty  who 
furnished  a  minor  whiskey  in  exchange  for  his  promise 
to  return  a  like  quantity  at  a  later  date.  The  court  said 
that  the  accused  had  neither  "sold",  since  there  was  no 
price  in  money,  nor  did  he  "give",  since  he  got  some- 
thing in  exchange.^''' 

The  fact  that  some  money  is  given  in  exchange 
together  with  other  things,  does  not  make  the  transac- 
tion a  sale  if  the  exchange  as  a  whole  has  no  monetary 
value  placed  upon  it.  Thus,  a  slave  dealer  exchanged 
two  slaves  which  he  owned  plus  $100  in  money  for  two 
other  slaves.  After  the  transaction  had  been  carried 
out,  one  of  the  parties  desired  to  evade  its  effect  and 
alleged  that  it  was  void  because  the  dealer  had  no  license 
and  a  statute  of  the  state  declared  that  all  sales,  made 
under  the  circumstances,  without  a  license  should  be 
void.  The  transaction  was  held  valid,  however,  on  the 
ground  that  it  was  not  a  "sale"  even  though  part  of 
the  exchange  was  in  actual  money.  The  court  laid  down 
the  proposition  that  actual  money  need  not  pass  in  order 
to  constitute  a  sale,  that  in  business  life  real  money 
seldom  does  pass,  but  that  Avhatever  is  given  in  exchange 
"must  be  treated  as  so  much  money"  and  its  value  must 
be  estimated  in  relation  to  money,  not  merely  in  rela- 
tion to  the  thing  for  which  it  is  exchanged." 

As  this  court  said,  the  consideration  need  not  be  in 
money,  for  the  transaction  to  constitute  a  "sale",  if  its 
value  is  estimated  in  terms  of  money.     Neither  need 

17 — Coker  v.  State,  91  Ala.  92.  a  statute  prohibiting  sales,  Com. 

This  court  expressly  overrules  the  v.  Packard,  71  Mass.  (5  Gray)  101; 

case  of  Com.  v.  Abrams,  150  Mass.  even  though  money  be  given  back 

393,which  had  held  precisely  simi-  ^^ter  as   a   bona   fide   return   gift 

lar  circumstances  to  constitute  a  ^^^  "^^  ^  "^^^^  colorable  evasion, 

«galg..  Finley   v.   State,    Tex.,   47    S.   W. 

A    "gift",    even    though    by    a  1015;    Ace.  Wood   v.   Territory  of 

hotel-keeper  through  the  agency  of  Oregon,  1  Ore.  223. 
a  waiter  and  to  one  who  expected  18 — Gunter    v.    Lecky,    30    Ala. 

to    pay    Is    not    a    "sale"    within  591. 


GENERAL  PRINCIPLES  11 

the  estimate  be  in  accordance  with  what  others  might 
value  it.  All  that  is  necessary  is  that  the  parties 
treat  it  as  though  it  were  the  equivalent  of  a  speci- 
fied amount  of  money.  Thus  in  Brunsoold  v.  Medgor- 
den^®  the  plaintiff  had  sold  land  to  defendant  for  a  stated 
price  of  $9600.  It  was  agreed  that  the  plaintiff  would 
accept  in  lieu  of  money  a  certain  stock  of  groceries 
valued  at  their  wholesale  cost.  As  a  matter  of  fact  the 
groceries  were  actually  worth  only  about  70%  of  their 
wholesale  price.  Although  the  agreement  was  thus 
an  exchange  of  groceries  for  land,  mth  a  fictitious  value 
set  upon  the  groceries,  the  court  nevertheless,  by  way  of 
dictum,  declared  the  transaction  to  be  a  *'sale"  rather 
than  a  ^'barter  and  exchange".^" 

For  a  transaction  to  constitute  a  sale  it  is  not  essential 
that  the  thought  of  transferring  title  have  been  in  the 
minds  of  the  parties,  nor  that  the  transfer  of  title  have 
been  the  primary  motive.  It  is  enough  to  give  the  trans- 
action the  legal  effects  of  a  ' '  sale  "  if  it  does  in  fact  result 
in  a  transfer  of  ownership  of  the  goods.*^ 

19— Iowa,  153  N.  W.  163.  v.  Warren,  160  Mass.  533;  People 

20— Picard    v.    McCormick,    11  v.  Clair,   221   N.  Y.   108;    Com.  v. 

Mich.  68.    As  a  matter  of  recovery  Miller,  131  Pa.  118;  State  v.  Lotti, 

of  "purchase  price"  or  "damages";  72   Vt.    115. 

Studebaker  Corp.  v.  Gollmar,  150  Contracts    to    manufacture    ar- 

N.  W.  442,  159  Wis.  226.  tides  are  held,  in  many  jurisdic- 

21 — The  furnishing  of  food  in  a  tions,  to  be  "sales"  within  the 
restaurant  is  a  "sale",  so  that  an  meaning  of  the  Statute  of  Frauds, 
action  for  breach  of  warranty  can  Under  the  Statute,  which  re- 
be  maintained.  Friend  v.  Childs  quires  certain  contracts  of  "sale" 
Co.,  Mass.,  120  N.  E.  407;  Barring-  to  be  in  writing,  the  interpretation 
ton  V.  Hotel  Astor,  171  N.  Y.  S.  of  the  word  is  somewhat  more 
840;  Leahy  v.  Essex  Co.,  148  N.  liberal  than  is  its  interpretation 
Y.  S.  1063;  Race  v.  Krum,  146  N.  under  penal  statutes.  Purcell  v. 
Y.  S.  197,  affd.  222  N.  Y.  410.  Miner,  4  Wall.  (U.  S.)  513;   Sursa 

Contra,    Merrill    v.    Hodson,    88  v.  Cash,  171  Mo.  Ap.  396;  Moss  v. 

Conn.  314;  Valeri  v.  Pullman  Co.,  Culver,  64  Pa.  414,  3  Am.  Rep.  601; 

218  Fed.   519.  Welch    v.    Bigger,    24    Idaho    169. 

And  so  that  statutes  prohibiting  See    the    discussion    under    that 

"sales"   of   game,   liquor,   adulter-  heading. 

ated    milk,    etc.    apply.      Com.    v.  Under  the  English  "Profiteering 

Phoenix  Co.,  157   Ky.   180;    Com.  Act",  the  furnishing  of  food  by  a 


12 


THE  LAW  OF  SALES 


Subject  Matter  of  Sales. — Anything  can  be  sold  which 
is  capable  of  being  owned  in  a  legal  sense.^'^ 

The  law  permits  the  transfer  of  ownership  of  anything 
which  it  recognizes  as  being  the  objectof  property  rights. 
It  makes  no  difference  therefore  whether  the  subject  of 
the  sale  is  corporeal  property,  so  tangible  as  a  cow,  for 
instance,  or  a  mere  incorporeal  legal  right,  such  as  an 
invention  whose  exclusive  use  is  secured  by  patent,  or 
the  good  will  of  a  business.  A  mere  ''privilege"  of  doing 
some  particular  thing  may  be  transferred  to  another  and 
the  transaction  will  be  called  a  ''sale".^^ 


restaurant  keeper  has  been  held 
to  be  a  "sale".  Rex  v.  Birming- 
ham Profiteering  Com.,  (1920)  K. 
B.  57,  89  L.  J.  R.  57;  so  also  the 
compounding  of  a  prescription  and 
transfer  of  the  resultant  product, 
Rex  V.  Wood  Green  Profiteering 
Com.,  (1920)  K.  B.  55,  89  L.  J.  R.  55. 

22 — There  are  some  rights  which 
can  be  enforced  against  any  per- 
son, and  hence  come  within  some 
definitions  of  a  right  in  rem,  but 
which  so  completely  appertain  to 
the  individual  in  whose  favor  they 
run  that  they  can  not  conceivably 
be  transferred.  Such,  for  instance, 
is  the  right  of  privacy  and  the 
right  to  a  reputation — as  distinct 
from  business  good  will.  While 
it  may  be  said  that  these,  although 
rights  in  rem,  are  incapable  of 
transfer  of  ownership  and  there- 
fore can  not  be  the  subject  of  a 
sale,  it  may  also  be  said  that  they 
are  not  the  subjects  of  ownership 
in  a  legal  sense.  The  issue  is, 
however,  purely  one  of  terminol- 
ogy; if  such  rights  may  be  said 
to  be  "owned"  they  must  be  ex- 
cepted from  the  statement  of  the 
text,  which  is  in  that  case  too 
broad  in  its  unqualified  form. 


23 — In  Hathaway  v.  Bennett,  10 
N.  Y.  108,  plaintiff  had  "bought" 
from  X  the  privilege  which  X 
had  by  agreement  with  Bennett  of 
selling  the  latters  newspapers 
through  a  certain  district.  The 
suit  was  occasioned  by  Bennett's 
refusal  to  supply  papers  to 
plaintiff.  The  contract  held  that 
Bennett  might  revoke  the  priv- 
ilege at  any  time  but  that  so  long 
as  it  did  exist  it  was  capable  of 
"sale"  and  its  ownership  had  been 
transferred  to  plaintiff  so  as  to 
make   him    owner   of   it. 

In  Hoyt  V.  Holly,  39  Conn.  326, 
12  Am.  Rep.  390,  plaintiff,  a  phy- 
sician had  agreed  with  defendant 
that  in  return  for  payment  by 
defendant  he  would  introduce  de- 
fendant to  his  patients  and  trans- 
fer to  him  the  good  will  of  so 
many  as  he  could  and  would  him- 
self remove  from  practice.  The 
issue  was  only  whether  such  a 
contract  was  valid  and  enforcible 
and  the  court  upheld  it,  calling 
it  a  "sale"  of  the  good  will. 

The  transfer  of  an  interest  in 
a  partnership  was  called  a  "sale" 
in  Van  Brocklin  v.  Smeallie,  140 
N.  y.  70,  and  declared  to  be  effec- 
tive.    Ace.  Slidell  v.  McCoy's  Exs. 


GENERAL  PRINCIPLES  13 

Choses  in  Action. — Some  effort  has  been  made, 

from  time  to  time,  to  distinguish  between  the  transfer 
of  property  which  exists  because  of  a  right  of  legal  action 
against  all  persons  generally  and  that  property  which 
consists  only  of  a  right  of  legal  action  against  some 
particular  person  or  persons.  The  former  are  techni- 
cally called  property  rights,  or  rights  in  rem,  and  the 
latter  are  called  rights  in  personam.  At  one  time  the 
latter,  that  is,  the  right  of  action  against  a  particular 
person,  could  not  be  transferred.  It  could  be  exercised 
only  by  the  person  in  whom  it  had  been  originally  created. 
That  is  to  say,  the  possessor  of  the  right  could  go  through 
all  the  motions  and  follow  the  forms  of  transferring 
it  to  another  but  the  courts  would  refuse  to  allow  that 
other  to  exercise  it.  In  legal  effect,  therefore,  it  was 
not  transferred.  By  a  progress  of  development  which 
need  not  here  be  discussed,  it  has  come  to  pass  that  at 
the  present  day  such  rights  of  action  can  be  transferred 
80  that  they  may  be  enforced  by  the  transferee  in  the 
name  of  his  transferor  at  least,  and  usually  in  his  own 
name.  But  because  of  the  fact  that  at  one  point  in  the 
development  of  the  legal  privilege  of  transferring 
them  they  could  be  enforced  by  the  transferee  only 
in  the  name  of  the  transferor,  and  the  transferee 
could  not  be  said  therefore  to  be  ''owner"  of  the 
right  of  action,  one  finds  frequent  intimation  that  such 
rights  can  not  be  ''sold".  "Assignment"  of  the  right 
was  the  proper  term  for  the  transfer.  But  since  the  priv- 
ilege of  transferring  the  right  of  action  has  come  to  the 
point  where  the  transferee  can  exercise  it  in  his  own 
name  he  has  acquired  at  least  one  of  the  rights  of  owner- 
ship and  is  generally  called  "owner".  Likemse,  the 
transfer  is  indiscriminately  called  "assignment"  or 
"sale".     It  is  immaterial  whether  the  transaction  be 

15  La.  340.  The  right  to  receive  sale  to  satisfy  a  judgment  against 
a  part  of  rents  collected  by  a  re-  the  owner  of  the  right,  Verplanck 
ceiver  may  be  "sold"  at  judicial      v.  Verplanck,  29  N.  Y.  Sup.  Ct.  104. 


14  THE  LAW  OF  SALES 

called  a  **sale"  or  not;  the  fact  is  that  the  legal  power 
to  exercise  certain  rights  of  suit  can  now  be  transferred 
from  one  person  to  another.'^** 

Contractual  Features. — The  law  does  not  recognize  a 
transfer  of  absolute  ownership  in  a  thing  except  as  the 
result  of  mutual  intention.  The  original  owner  must 
intend,  actually  or  apparently,  to  give  up  his  ownership 
in  favor  of  the  new  party,  and  the  new  one  must  have  a 
like  intention  to  receive  it.^^  (One  possible  exception 
is  that  of  judicial  sale  wherein  the  ownership  is  trans- 
ferred by  order  of  the  court  regardless  of  the  desires 
of  the  present  owner.)  Since  agreement  is  essential  to 
change  of  legal  title,  it  may  be  said  that  every  sale,  in 
the  sense  of  an  accompHshed  transfer  of  title,  is  the  result 
of  an  agreement  to  sell. 

This  agreement  may  be  coincident  with  the  transfer 
itself,  or  it  may  precede  the  actual  transfer  by  a  greater 
or  less  moment  of  time.  When  the  agreement  and  trans- 
fer are  coincident,  the  same  acts  of  the  parties  serve 
to  effectuate  the  transfer  and  to  demonstrate  the  intent 
itself.  If,  for  instance,  B  should  walk  into  a  store,  pick 
up  an  article  of  merchandise,  hand  the  proper  price 
to  the  proprietor  with  the  latter 's  acceptance  of  it,  and 
leave  the  store  with  the  article  in  his  possession,  all 
without  a  spoken  word,  there  would  coincidently  both 
be  demonstrated  a  mutual  intent  that  title  should  be 

24 — It  does  not  seem  necessary  he     does     get    the     fundamental 

to  the  particular  subject  matter  of  right  of  enjoyment,  see  the  con- 

this  book  to  discuss  in  detail  the  troversial  articles  by  Messrs.  Cook 

levelopment  of  the  power  to  trans-  and  Williston  in  29  Harvard  L.  R. 

fer  rights  in  action  nor  the  partic-  816,  30  Harvard  L.  R.  99,  30  Har- 

ular  limitations  still  existing,  all  vard  L.  R.  449. 

of  which  can  be  found  in  any  good  25 — A   finder   of   property    does 

work    on    contracts.      As    to    the  not  acquire  an  absolute  ownership 

various    correlated    rights,    other  since   his   rights   are   subordinate 

than  the  mere  right  of  suit,  which  to  those  of  the  original  owner  even 

the   transferee  of  a  right  to  sue  though  he  has   all   the   rights   of 

acquires,  and  particularly  whether  owner  in  respect  to  other  persons. 

*See  Uniform  Sales  Act,  Section  76,  "Goods". 


GENERAL  PRINCIPLES  15 

transferred   and   the   transfer   itself   would   be   legally 
accomplished.^^ 

On  the  other  hand,  the  parties  may  enter  into  a  present 
agreement  that  ownership  of  a  thing  shall  be  trans- 
ferred at  some  time  in  the  future.  This  agreement, 
whether  carried  into  execution  coincidently  with'  its 
formation,  or  subsequently  to  be  fulfilled,  has  all  the 
characteristics  of  an  ordinary  contract.  If  it  has  been 
executed  and  the  transfer  of  title  effectuated  in  accord- 
ance with  it,  the  rules  in  respect  to  executed  contracts 
apply.  If  the  transfer  has  not  been  made,  the  rights  of 
the  parties  are  determined  in  accordance  with  the  general 
rules  of  contracts  to  be  performed.  There  must  be  the 
usual  capacity  of  parties,  consideration,  absence  of  fraud 
or  mistake  and  the  like.  This  preliminary  and  necessary 
contract  is  not  discussed  as  such  in  this  book,  but  must 
be  studied  in  works  particularly  devoted  to  that  subject. 
It  is  sufficient  here  to  call  attention  to  the  fact  that  there 
must  have  been  an  effective  contract  to  transfer  the  own- 
ership, before  the  law  ivill,  by  recognition  thereof,  create 
an  actual  transfer  of  the  ownership.^ 

26— Peelers  v.   State,   154  Wis. 
111. 


CHAPTER  II 

Transfer  of  Title 
Rules  for  Determining  the  Passing  of  Title 

Passing  of  Title. — Assuming  that  the  parties  liave  so 
acted  that  there  is  a  contract  to  which  the  law  can  give 
effect,  the  question  at  once  arises  whether  the  transfer 
of  title  has  been  accomplished.  This  is  the  issue  on 
which,  fundamentally,  most  of  the  htigation  over  sales 
has  been  based.  On  the  answer  to  it  rest,  of  course,  the 
liabilities  and  rights  of  the  parties  in  respect  to  the 
thing  concerned. 

The  following  discussion  is  necessarily  divided  into 
two  sections.  It  is  obvious,  as  a  matter  of  logic,  as  well 
as  a  rule  of  law,  that  courts  can  not  consider  ^vhere  the 
ownership  of  a  thing  resides  unless  they  know  what  par- 
ticular thing  it  is  whose  title  is  in  question.  Until  the 
parties  themselves  have  decided  just  what  particular 
thing  they  intend  to  transfer,  no  court  can  say  whether 
that  thing  has  been  transferred.  Often  the  controversy 
is  really  duplex;  first,  w^hether  the  parties  have  in  fact 
agreed  upon  the  particular  thing,  and,  second,  whether 
if  so  agreed,  they  have  transferred  its  ownership.  The 
two  issues  can  not  possibly,  Avith  intelligence,  be  discussed 
or  considered  as  one.  The  logical  arrangement  would  be 
to  treat  the  underlying  question  first,  and  to  discuss  the 
rules  by  which  it  is  determined  whether  the  particular 
thing  has  been  agreed  upon.  But,  for  reasons  which 
present  themselves  throughout  the  discussion,  it  seems 
practical  msdom  to  treat  first  the  passing  of  title,  upon 
an  assumption  tlint  the  parties  have  agreed  upon  the  spe- 
cific chattel  affected,  and  then  to  discuss  the  correctness 
of  that  assumption. 

16 


TRANSFER  OF  TITLE  17 

Intent  Governs. — When  the  transaction  concerns  a 
definite  and  specified  thing,  whose  ownership  the  seller 
is  legally  capable  of  transferring,  the  primary  and  funda- 
mental principle  is,  that  the  title  will  be  treated  as  having 
been  transferred  when  the  parties  intend  it  should  be, 
and  only  when  they  so  intend.* 

Change  of  Possession  Not  Essential. — There  are  no 
formalities  or  legal  conditions  which  must  be  complied 
with  before  an  intent  to  pass  title  will  be  given  effect  by 
the  courts.!  (But  see  the  discussion  of  the  ''Statute  of 
Frauds".)  It  is  not  necessary,  for  instance,  that  pos- 
session be  transferred  for  the  ownership  to  be  passed. 
Historically,  the  rule  was  otherwise ;  the  rights  of  owner- 
ship were  inseparable  from  physical  possession.^  In  the 
case  of  a  gift,  already  commented  on  as  a  transfer  of 
ownership  without  anything  received  in  exchange,  this 
original  necessity  of  a  change  of  possession  still  exists. 
Courts  will  not  recognize  title  as  having  passed  by  way 
of  gift  unless  and  until  the  possession  of  the  thing  has 
passed  to  the  recipient  of  the  gift.  But  it  is  now  thor- 
oughly settled  that  where  there  is  a  reciprocal  exchange 
of  something,  even  though  it  be  only  a  promise,  for  the 
thing  whose  title  is  to  be  transferred,  a  change  of  pos- 
session is  not  essential  to  vest  in  the  transferee,  at  least 
as  against  the  transferor,  rights  and  privileges  which 
usually  connote  ownership.^ 

1— See  Pollock  &  Maitland,  II,  531;   Shrimer  v.  Meyer,  171  Ala. 

181.  112;  Wade  v.  Moffett,  21  111.  110, 

2 — The  history  of  this  develop-  14   Am.   Dec.   79;    VanBrocklin  v. 

ment  is  summed  up  by  Prof.  Ames  Smeallie,  140  N.  Y.  70,  72;  Baker 

in  8  Harvard  L.  R.  252,  258.     Per-  v.  McDonald,  74  Neb.  595,  1  L.  R. 

kins  V.  Halpren,  257  Pa.  402,  101  A.  (n.  s.)  337;  Bradley  v.  Wheel- 

Atl.  741;  Com.  V.  Hess,  148  Pa.  98,  er,    44    N.    Y.    495;    Bertelson    v. 

17  L.  R.  A.  176;  Cope's  Est,  191  Bower,    81    Ind.    512;    Schwab    v. 

Pa.    589;    Brewer    v.    Mich.    Salt  Oatman,     113     N.     Y.     S.     910; 

Assn.,  47  Mich.  526;   Sherwood  v.  Lickbarrow  v.  Mason,  2  T.  R.  63; 

Walker,  66  Mich.  568,  11  Am.  St.  1   H.  Blackstone  357;    2  Id.   211; 

♦See  Uniform  Sales  Act,  Section  18,   (1),  (2),  19. 

tSee  Uniform  Sales  Act,  Sections. 


18  THE  LAW  OF  SALES 

It  is  true  that  if  possession  is  not  passed  to  the  buyer, 
third  persons  acting  in  good  faith  may  acquire  from  the 
seller  the  rights  of  ownership  as  against  even  the  first 
buyer.  In  a  sense,  therefore,  until  possession  actually 
passes  to  the  buyer  the  seller  has  still  the  legal  power  to 
control  the  right  to  possession.  And  so,  in  a  sense,  he 
has  practical  ownership.  If  he  chooses  fraudulently  to 
sell  to  a  third  person  who  takes  possession,  that  person 
has,  in  some  jurisdictions,  the  legal  right  to  keep  posses- 
sion, and,  hence,  has  ownership.  This  might  be  put  upon 
the  ground  either  that  the  original  buyer's  rights  are 
set  aside  in  favor  of  the  third  person  because  he  failed 
to  take  possession,  or  that  title  remained  in  the  seller 
because  of  his  continuing  in  possession  and  could  still 
be  passed  to  the  third  person.  The  decisions  themselves 
are  not  clear  as  to  what  ground  they  rest  on.  Some 
of  them  do  use  expressions  which  make  it  appear  that 
they  consider  ''ownership"  never  to  have  passed  to 
the  original  buyer  because  he  did  not  have  possession. 

At  most,  however,  this  apparent  conflict  is  one  of  termi- 
nology only — namely,  how  completely  and  exclusively 

5  T.  R.  683;  Meade  v.  Smith,  16  would  be  after  a  deUvery  of  goods 
Conn.  345;  Whitcomb  v.  Whit-  in  pursuance  of  a  general  con- 
ney,  24  Mich.  486;  Poling  v.  Flan-  tract.  The  very  appropriation  of 
agan,  41  W.  Va.  191;  Dixon  v.  the  chattel  is  equivalent  to  de- 
Yates,  5  B.  «fe  Ad.  313,  340,  "I  take  livery  by  the  vendor,  and  the  as- 
it  to  be  clear  that  by  the  law  of  sent  of  the  vendee  to  take  the 
England  the  sale  of  a  specific  specific  chattel,  and  to  pay  the 
chattel  passes  the  property  in  it  price,  is  equivalent  to  his  accept- 
to  the  vendee  without  delivery.  ing  possession.  The  effect  of  the 
*  ♦  *  Where  there  is  a  sale  of  contract,  therefore  is  to  vest  the 
goods  generally,  no  property  in  property  in  the  bargainee."  Fel- 
them  passes  till  delivery,  because  lows  v.  Bost.  &  Me.  R.  R.,  78  N. 
until  then  the  very  goods  sold  are  H.  594,  98  Atl.  481;  Johnson  v. 
not  ascertained;  but  where,  by  Tabor,  101  Miss.  78;  Young  v.  In- 
the  contract  itself,  the  vendor  golsbe,  208  N.  Y.  503;  Townsend 
appropriates  to  the  vendee  a  spe-  v.  Hargraves,  118  Mass.  325; 
clfic  chattel,  and  the  latter  thereby  Briggs  v.  U.  S.,  143  U.  S.  346. 
agrees  to  take  that  specific  Contra,  dictuvi  only,  Georgia 
chattel,  and  to  pay  the  stipu-  Marble  Works  v.  Minor,  128  Ark. 
lated  price,  the  parties  are  then  124,  193  S.  W.  498. 
in    the    same    situation    as    they 


TRANSFER  OF  TITLE  19 

must  one  control  the  legal  right  of  possession  in  order 
properly  to  be  called  the  legal  "owner".  The  courts  are 
agreed,  that,  whatever  he  be  called,  the  buyer,  even  though 
he  does  not  take  possession,  has  all  the  customary  rights 
and  liabilities  of  ownership  except  as  to  certain  third  per- 
sons who  take  possession  from  the  seller  in  good  faith.' 
Furthermore,  the  overwhelming  majority  of  opinions 
speak  of  him  as  having  acquired  the  ''ownership".  Ac- 
cordingly his  rights  will  be  called  ' '  o^vnership "  in  this 
discussion. 

The  ownership  may  pass  to  the  buyer,  if  the  parties 
so  intend,  even  though  by  their  agreement  he  has  not 
even  the  right  to  possession,  without  further  act,  such 
as  payment  of  the  price.* 

Likewise,  certain  rights  generally  appertaining  to  title 
will  pass  to  the  buyer  even  though  the  goods  are  in  the 
adverse  possession  of  a  third  person,  and  the  transaction 
is  generally  called  a  '*sale".^ 

Payment  Not  Essential.— PajTnent  is  not  essential  to 
the  passing  of  title  when  the  parties  have  not  intended 
that  it  shall  be.^ 

Presumptions  of  Intent.— This  rule,  that  the  intention 

3 — The  rights  of  such  third  per-  6— Thompson    v.    Brannin,    94 

sons  are  discussed  Post,  p.  212.  Ky.    490;    Allen    v.    Rushfort,    72 

4— Clark   V.   Greeley,   62   N.   H.  ^eb.  907;  Bayne  v.  Hard,  79  N.  Y. 

394;  State  v.  MuHin,  78  O.  S.  358,  g.   208;    Richardson  v.   Insurance 

125  Am.  St.  710;  Obery  v.  Lander,  co.,  136   N.   C.   314,  but  compare, 

179  Mass.  125;  Lester  v.  East,  49  Hughes  v.  Knott,  138  N.  C.  105; 

Ind.  588;  Tarling  v.  Baxter,  6  Barn.  Parker  v.  Davis,   13   O.  C.   C.   R. 

&  Cress.  360.  631;    Tarling   v.   Baxter,    6   Barn. 

5 — Cartland  v.  Morrison,  32  Me.  &  Cress.  360;  see  also  cases  cited 
190.  But  compare  the  decisions,  above  and  those  referred  to  in 
based  upon  public  policy,  in  subsequent  sections. 
O'Keefe  v.  Kellogg,  15  111.  347;  Mc-  By  statute  of  some  states  pay- 
Cully  V.  Hardy,  13  111.  Ap.  631;  ment  is  made  an  essential  to  the 
Erickson  v.  Lyon,  26  111.  Ap.  17;  passing  of  title  of  certain  kinds 
Young  V.  Ferguson,  11  Ky.  298.  of  goods.  See  the  discussion  under 
See  the  contention  of  Mr.  Ames,  "conditions  precedent",  Post,  p.  33. 
that  "title"  does  not  pass,  in  3 
Harvard  L.  R.  342. 


20  THE  LAW  OF  SALES 

of  the  parties  determines  when  title  passes  to  specific 
property,  is  simple  and  explicit  enough,  and  involves  no 
difficulty  when  the  parties  have  made  their  intention 
clear.  Controversy  arises  only  where  the  parties  can 
not  agree  as  to  what  their  intent  was,  or  had  no  conscious, 
no  real  intent  as  to  title  at  all. 

If  the  parties  had  an  actual  and  conscious,  although 
unexpressed,  intent,  it  would  properly  be  the  function 
of  a  jury  to  determine  what  it  was,  as  a  question  of  fact. 
But,  it  is  common  experience  that  the  parties  to  a  sale 
very  seldom  have  any  conscious  thought  whatever  as 
to  the  exact  point  of  events  at  which  title  is  to  pass. 
The  ultimate  result  is  all  that  enters  into  their  calcula- 
tion. It  is  impossible  in  such  case  to  speak  of  the  "fact" 
of  their  intent.  There  is  no  such  fact.  Yet  there  must 
be  some  point  in  the  transaction  at  which  title  passed, 
and  it  becomes  the  duty  of  the  court  to  say  what  this 
point  was.  This  is  not  a  finding  of  fact,  but  rather  a 
decision  of  what  the  court  thinks  would  have  been  the 
fact  if  the  parties  had  thought  about  the  matter.  In 
other  words,  it  is  a  judicial  conclusion  as  to  what  normal 
men  in  like  circumstances  would  prohahly  have  intended 
had  their  attention  been  directed  to  the  matter.  This 
distinction  between  finding  the  actual  fact  of  intent  by 
a  jury,  and  a  conclusion  by  the  court  of  what  might 
have  been  the  normal  intent  had  there  been  a  conscious 
one,  has  not  been  clearly  made  by  the  courts. 

Some  courts  have  left  the  question  of  intent  to  the 
jury,  without  discussion  of  reason  for  so  doing,  appar- 
ently as  a  matter  of  course,  as  though  it  were  a  question 
of  fact.''    Generally,  however,  where  the  matter  is  left  to 

7 — In  Graff  v.  Fitch,  58  111.  373,  was  not  intended  to  pass,  and  the 
the  trial  court  left  the  matter  with  jury  should  have  been  left  to  de- 
the  jury  with  instructions  that,  if  cide  the  real  intention.  In  Rich- 
they  found  certain  facts  as  alleged,  ardson  v.  Ins.  Co.,  136  N.  C.  314, 
title  did  not  pass.  This  was  held  it  was  held  that  the  question  of 
error  by  the  Supreme  Court  on  intent  should  have  been  left  to 
the  ground  that  such  facts  only  the  jury.  See  Stewart  v.  Hen- 
created  a  presumption  that  title  ningson  Produce  Co.,  88  Kan.  521, 


TRANSFER  OF  TITLE  21 

the  jury  at  all,  it  is  left  with  specific  instructions  that  a 
strong  presumption  of  intent  arises  from  certain  facts.' 
The  great  majority  of  courts,  without  specifically  say- 
ing anything  about  it,  treat  this  intent  as  a  question  to 
be  determined  by  the  court  according  to  established  rules 
of  presumption.  These  rules  of  presumption  are  burlt 
upon  certain  factors  which  are  frequently  recurrent  in 
transactions  of  sale,  and  which,  because  of  their  common 
recurrence,  furnish  standards  that  will  apply  to  nearly 
every  case. 

Form  of  Agreement. — The  tense  of  the  words  used 


does  not  have  any  material  weight  with  the  court.  In 
Tarling  v.  Baxter,  for  instance,®  it  was  held  that  title  had 
passed,  although  the  form  of  the  agreement  was  to  pass 
title  in  the  future,  being,  '*I  have  *  *  *  agreed  to 
sell"  and  ''  I  have  *  *  *  agreed  to  buy".  In  Sher- 
win  V.  Mudge^°  the  w^ords  were  ''A  sells  and  B  buys", 
but  the  court  held  that  there  was  no  intent  to  pass  the 
title  at  that  time.*^ 

Nothing  Remaining  to  be  Done  by  Seller.  —  In 


general,  if  nothing  remains  to  be  done,  under  the  terms 

50  L.  R.  A.   (n.  s.)   Ill;    Wilkin-  were  undisputed — thus  leaving  for 

son    V.    Holiday,    33    Mich.    386;  the  jury   only  the   finding  of  the 

Morrow  v.  Reed,  30  Wis.  81 ;  Cun-  overt  facts  from  which  the  court 

ningham  v.  Ashbrook,  20  Mo.  553;  might  deduce  the  intent.    Accord, 

Weld  V.  Came,  98  Mass.  152;  Bur-  Miller   Milling  Co.   v.   Butterfield, 

rows  V.  Whitaker,  71  N.  Y.  291;  etc..  Co.,   32   Idaho  265,   181  Pac. 

Andrew    v.    Dieterich,    14    Wend.  703 ;  Pittsburgh  etc.  Co.,  v.  Cudahy 

(N.    Y.)     31;     Moats    v.    Strange  Co.,  260  Pa.  135. 

Bros.  Hide  Co.,  185  la.  356,  170  N.  9—6  Bam.  &  Cress.  360. 

W.  456.  10—127   Mass.   547. 

8 — Cunningham     v.     Ashbrook,  11 — Walti  v.  Gaba,  160  Cal.  324; 

20    Mo.    553;    Burrows    v.    Whit-  Hanson  v.  Meyer,  6  East  614,  "I 

aker,   71   N.   Y.   291;    Lingham   v.  have    bought" — title    held    not    to 

Eggleston,  27  Mich.  324.     In  Cas-  have  passed.     Piano  Co.  v.  Piano 

sinelli  v.  Humphrey  Supp.  Co.,  43  Co.,  85  O.  S.  196,  "I  hereby  trans- 

Nev.  208,  183  Pac.  523,  it  was  held  fer  my   full   right  of  ownership" 

to  be  a  question  for  the  court  if  held  not  indicative  that  title  was 

it  involved  the  construction  of  a  passed, 
written   contract,   or   if  the   facts 


22  THE  LAW  OF  SALES 

of  the  contract,  except  for  the  buyer  to  pay  the  agreed 
price  and  take  possession,  the  courts  assume,  in  the 
absence  of  any  showing  of  contrary  intention,  that  title 
has  passed.  The  presumption  is  that  the  parties  intended 
the  title  to  pass  as  soon  as  everything  else  was  done 
according  to  contract,  regardless  of  the  physical  posses- 
sion, or  of  actual  payment.^^*  But  if  parties  clearly  in- 
tend that  title  shall  not  pass  until  payment,  the  courts  will 
give  effect  to  that  intention. 

-Something  Remaining  to  be  Done  by  Seller. — On 


the  other  hand,  it  may  be  said  broadly  that  whenever 
the  parties  have  agreed  that  the  seller  is  to  do  some 
act  before  the  buyer  could  logically  and  naturally,  accord- 
ing to  the  agreement,  take  possession,  a  strong  legal  pre- 
sumption arises  that  they  did  not  intend  title  to  pass  until 
that  act  should  be  done. 

The  reason  for  this  presumption  is  variously  stated, 
and  is  not  definitely  ascertainable.  But,  although  the 
courts  which  follow  this  rule  do  not  themselves  state 
the  reason  for  it,  there  is  a  possible  reason  which  very 
logically  justifies  this  presumption  of  intent.  Ownership 
carries  with  it  the  risk  of  loss.  It  is  a  fair  presumption 
that  a  buyer  would  not  intend  to  take  title  to  goods  and 
to  assume  this  risk  of  loss,  unless  he  could  have  also  the 
right  to  protect  his  goods  from  loss  without  violating  the 
terms  of  the  agreement.    In  cases  where  the  seller  is  to 

12 — Tarling  v.   Baxter,   6   Barn,  fine  this  presumption  to  cases  in 

&     Cress.     360;     VanBrocklin     v.  which   it   positively   appears   that 

Smeallie,  140  N.  Y.  70;   Baker  v.  payment   was   not  to  be   immedi- 

McDonald,  74  Neb.  595,  1  L.  R.  A.  ate,    as   where   a   term    of   credit 

(n.  s.)  474.  Piano  Co.  v.  Piano  Co.,  ^^  expressly  given.     See  the  dis- 

85  O    S    196  cussion  under  "Cash  Sale",  Post, 

Contra,  dictum  only,  that  pay-  P-  33-    Paul  v.  Reed,  52  N.  H.  136; 

ment  is  a  prerequisite  to  passing  ^ich.  Cent.  Ry.  v.  Phillips,  60  111. 

of  title,  Hanson  v.  Meyer,  6  East  1^^- 
614.  See  also  cases  cited  ante,   that 

A  number  of  decisions,  particu-  title  may  pass  before  payment  and 

larly  the   very   earlier   ones,   con-  delivery. 

*See  Uniform  Sales  Act,  Section  19,  Rule  1. 


TRANSFER  OF  TITLE  23 

weigh  or  otherwise  measure  the  goods  in  order  to  deter- 
mine the  total  price,  it  is  presmnable  that  the  agreement 
contemplates  the  seller's  keeping  possession  until  he  does 
do  such  weighing.  If,  then,  the  buyer  should,  without 
the  seller's  permission,  take  possession  of  the  goods  be- 
fore the  seller  had  weighed  them,  he  would  violate  the 
implied  terms  of  the  agreement.  It  is  not  reasonable  to 
assume  that  the  buyer  intended  to  take  title  to  goods  at 
a  time  when  he  could  not  physically  protect  them  from 
loss  without  violating  his  agreement  with  the  seller.  To 
say  that  legally  he  could  take  possession  without  violation 
of  the  contract,  because  he  has  title,  is  begging  the  ques- 
tion. By  the  terms  of  the  agreement  he  can  not  take 
possession  until  the  seller  has  done  the  weighing  and 
therefore  can  not  act  freely  to  protect  the  goods.  The 
presumption  that  he  does  not  intend  to  take  title  under 
such  circumstances  has,  therefore,  a  thoroughly  sound 
reason  for  its  existence. 

In  accordance  with  this  general  rule,  if  goods  whose 
total  measurement  is  unknown  are  sold  at  a  stipulated 
price  per  unit,  and  it  is  the  duty,  or  the  privilege,  of  the 
seller,  with  or  without  the  buyer's  aid,  to  weigh  or  other- 
wise measure  the  mass  in  order  to  determine  the  total 
price,  it  is  presumed  that  title  was  not  intended  to  pass 
until  that  should  be  done.  In  the  cases  coming  within 
this  rule  it  may  be  observed  that  the  agreed  control  of 
possession  is  in  the  seller.  The  buyer  is  not  entitled  to 
take  possession  until  the  seller  shall  have  exercised  his 
privilege,  or  performed  his  duty,  by  determining  the 
total  price.  On  the  action  of  the  seller  therefore  depends 
the  agreed,  as  possibly  distinct  from  the  legal,  right  to 
possession.  The  buyer  can  not  tender  payment  and  take 
possession — and  so  protect  himself  from  loss — until  the 
seUer  has  determined  what  the  total  price  is.  The  same 
thing  is  true  when  the  seller  is  to  ascertain  the  quality 
of  the  goods  in  order  to  fix  the  actual  price,  and,  in  gen- 
eral, when  the  seller  is  the  one  who  is  to  do  anything 
whatever  that  is  necessary  to  a  determination  of  the 


24 


THE  LAW  OF  SALES 


total  price  to  be  paid.  In  all  such  cases  the  legal  pre- 
sumption is  that  the  parties  did  not  intend  title  to  pass 
until  the  thing  should  have  been  done."* 

As  this  rule  is  practically  founded  on  the  decision  in 
Hanson  v.  Meyer,^*  and  that  was  not  a  presumption  of 
intent,  but  rather  a  rule  that  title  could  not  pass  till 
payment,  it  may  be  doubted  if  there  is  any  real  reason, 
other  than  judicial  custom  in  following  precedent, 
behind  the  present  rule.  However,  the  rule  itself  exists 
as  stated,  and  it  can  at  least  be  justified  by  the  reason 
suggested  by  the  writer. 

Even  if  the  measuring  or  other  thing  to  determine 


13— Kein  v.  Tupper,  52  N.  Y. 
550  (quality) ;  Frost  v.  Woodruff, 
54  m.  155;  Lester  v.  East,  49  Ind. 
588;  Smith  v.  Wisconsin  Invest- 
ment Co.,  114  Wis.  151;  Robbins 
V.  Chipman,  1  Utah  335  dictum; 
Wesoloski  v.  Wysoski,  186  Mass. 
495;  Simmons  v.  Swift,  5  Barn.  & 
Cress.  857. 

In  Hanson  v.  Meyer,  6  East  614, 
the  rule  is  apparently  put  on  the 
ground  that  the  buyer  could  not 
pay  the  price  till  the  goods  were 
weighed  and  that,  contrary  to  the 
general  rule,  title  could  not  pass 
till  payment. 

Boaz  &  Co.  V.  Schneider  &  Co., 
69  Tex.  128,  appears  to  be  contrary 
to  this  rule,  but  is  not  necessarily 
so.  The  court  does  say,  "Where 
the  entire  mass  is  sold  and  must 
be  measured  simply  with  a  view  to 
the  ascertainment  of  its  price  for 
the  purpose  of  a  settlement,  the 
title  passes".  In  expression  this 
is  in  conflict  with  the  presumption 
as  stated.  The  actual  decision, 
however,  could  have  been  reached 
without  any  conflict.  The  other 
circumstances  were  easily  suffi- 
cient to  rebut  the  usual  presump- 
•See  Uniform  Sales  Act,  Section 


tion,  and,  indeed,  it  appears  that 
the  measuring  was  not  to  have 
been  done  by  the  seller  at  all  but 
by  the  buyer.  The  form  of  state- 
ment was  founded  only  on  the 
veriest  dictum  in  Cleveland  v. 
Williams,  29  Tex.  204. 

Lassing  v.  James,  107  Cal.  348, 
holds  with  some  confusion  of  lan- 
guage, that  title  had  passed  des- 
pite necessity  of  weighing  by  both 
parties,  to  determine  total  price. 
The  opinion  was  based  on  a  mere 
dictum  In  Blackwood  v.  Cutting 
Packing  Co.,  76  Cal.  212,  referring 
to  lack  of  identification  of  the 
property.  See  also  Groat  v.  Gile, 
51  N.  Y.  431.  In  this  case  the 
court  confounded  the  presumption 
with  the  rule  that  title  can  not 
pass  till  identity  is  established 
and,  the  latter  having  been  satis- 
fied, ignored  the  former.  Sanger 
v.  Waterbury,  116  N.  Y.  371. 

As  soon  as  the  weighing  or 
measuring  has  been  done  by  the 
seller  title  passes  instantly. 
Thompson  v.  Brannin,  94  Ky.  490 
dictum. 

14—6  East  614. 

19,  note. 


TRANSFER  OF  TITLE  25 

the  price  is  to  be  done  by  the  seller,  if  it  is  merely  to 
adjust  an  agreed  proximate  price,  no  presumption  that 
the  seller  intended  to  keep  title  arises.  In  so  far  as  this 
rule  is  confined  to  cases  in  which  the  buyer  is  permitted, 
by  the  contract,  to  take  possession  at  the  agreed  approxi- 
mate price,  without  awaiting  further  weighing,  etc.,  this 
exception  is  quite  in  accord  vdth  the  underlying  reason 
suggested.^^ 

Neither  is  it  presumed  that  the  seller  intended  to  keep 
title  if  the  determination  of  the  price  is  a  mere  mathe- 
matical calculation  not  requiring  him  to  retain  possession 
of  the  goods.^^ 

In  regard  to  all  these  statements  of  rule,  it  must  be  said 
that  there  is  much  conflict  and  utter  confusion  of  ideas 
in  the  decisions  and  opinions. 

It  is  sometimes  stated,  that  if  the  seller  is  to  do  some- 
thing to  complete  the  goods,  or  to  put  them  in  a  deliv- 
erable state,  title  is  presumed  not  to  have  passed."* 
The  reason  for  this  rule  may  be  that  suggested  above — 
that  the  buyer  would  hardly  intend  to  take  title  and  its  at- 
tendant risks  while  barred  from  immediate  posses- 
sion by  the  seller's  right  or  duty  to  do  something  which 
would  necessitate  his  possession — or  it  may  be  because 
the  thing  whose  title  the  buyer  has  contracted  to  accept 
is  not  in  existence  till  the  seller's  work  is  done.  Thus,  if 
the  sale  were  existing  rough  castings,  to  be  polished  by 
the  seller,  it  might  be  either  that  the  parties  considered 
the  rough  castings  as  the  thing  sold  and  purchased,  with 
a  collateral  agreement  that  the  seller  should  polish 
them,  or  that  they  intended  to  transfer  title  only  to  pol- 
ished castings  made  from  the  rough  castings  pointed  out. 
If  they  had  in  mind  the  former  transaction,  if  title  did  not 
pass  it  would  be  for  the  former  reason.    But  if  they  had 

15 — Lingham    v.    Eggleston,    27  16 — Bradley  v.  Wheeler,   44   N. 

Mich.  324;    Swanwlck  v.  Sothern,      Y.  495. 

9  Adolph.   &  El.   895.  17— Blackwood  v.  Cutting  Pack- 

ing Co.,  76  Cal.  212. 

*See  Uniform  Sales  Act,  Section  19,  Rule  2. 


26  THE  LAW  OF  SALES 

in  mind  the  second  transaction,  obviously  there  would 
be  no  title  to  pass  until  the  things  contemplated — the 
polished  castings — should  come  into  existence  through 
the  seller's  having  done  the  work.  Even  in  clear  cases  of 
fact,  however,  the  particular  reason  on  which  the  courts 
hold  that  title  has  not  passed  is  usually  indeter- 
minable.*® 

Of  course,  if  the  facts  clearly  indicate  that  the  parties 
intended  title  to  pass  before  the  seller's  further  duty 
should  be  performed  the  courts  will  give  effect  to  that  in- 
tention.*® 

-Something  to  be  Done  by  Buyer. — The  presump- 


tion that  there  was  no  intent  to  pass  title  does  not  arise 
if  the  weighing,  measuring,  etc.,  to  determine  the  total 
price  is  to  be  done  by  the  buyer.  This,  again,  is  in  pre- 
cise accord  with  the  underlying  principle  suggested.  If 
the  buyer  is  to  do  the  weighing,  etc.,  the  determination 
of  the  total  price  is  within  his  o^vn  vohtion.  It  is  true 
that  actually  the  seller  may  not  let  the  buyer  proceed, 
but  by  the  terms  of  the  agreement,  as  distinct  from  phys- 
ical power,  the  buyer  has  the  power  to  control  possession, 
can  take  possession  when  he  chooses,  without  waiting  for 
the  seller  to  act,  and  is  thereby  indicated  as  the  intended 
owner.*° 

However,  as  the  rule,  that  title  would  not  pass  if  there 
was  something  to  be  done  by  the  seller,  originated  in  the 
idea  that  determination  of  total  price  was  preliminary  to 
payment,  which  was  itself  a  prerequisite  to  the  passing  of 
title,  some  courts  have  followed  the  original  statement 
without  making  any  distinction  of  those  cases  where  it  is 
to  be  done  by  the  buyer.  Like\vise  there  is  considerable 
statement  to  the  effect  that  if  something  is  to  be  done 

18 — Blackwood  v.  Cutting  Pack-  495;     Lingham    v.    Eggleston,    27 

ing  Co.,  76  Cal.  212.  Mich.  324;   Burrows  v.  Whitaker, 

19— Byles  v.  Colier,  54  Mich.  1;  71  N.  Y.  291;    Odell  v.  Boston  & 

Owen  V.  Dixon,  11  Ky.  L.  Rep.  902.  Maine  R.  R.,  109  Mass.  50;  Turley 

20— Bradley  v.  Wheeler,  44  N.  Y.  v.  Bates,  2  Hurl.  &  Colt.  200. 


TRANSFER  OF  TITLE  27 

by  either  party  to  determine  the  total  price,  title  is  pre- 
sumed not  to  pass  regardless  of  whether  it  is  the  seller 
or  the  buyer  who  is  to  do  the  necessary  acts.  This  is 
apparently  derived  from  a  confusion  with  the  rule  of 
law  that  until  goods  have  been  identified,  as  by  measur- 
ing or  sorting  from  a  larger  mass,  title  can  not  pass. 
But  again  the  conflict  is  for  the  most  part  one  of  expres- 
sion only  and  in  practically  every  case  where  the  broad 
statement  appears  it  will  be  found  that  other  factors 
would  themselves  have  precluded  a  presumption  of  intent 
to  pass  title.*^ 

If  the  parties  are  to  act  jointly  in  doing  whatever  is 
necessary  to  determine  the  price  it  is  presumed  they 
intended  the  title  to  stay  where  it  was  until  such  acts 
should  be  done.^^ 

Delivery  to  Buyer. — If  there  has  been  actual  deliv- 


ery to  the  buyer  any  presumption  arising  from  the  neces- 
sity of  measuring,  or  doing  other  things,  is  rebutted.^'' 

Rebutting  Circumstances. — These  rules,  like  those 


21 — Andrew    v.     Dieterich,     14  Buffington,  103  Mass.  62;  Macom- 

Wend.  (N.  Y.)  31,  has  been  cited  as  ber   v.    Parker,   13    Pick.    (Mass.) 

in    conflict    but    the    case    itself  175;  Scott  v.  Wells,  6  W.  &  S.  (Pa.) 

shows    that    payment    had    been  357;   Leonard  v.   Davis,   66  N.   Y. 

made  a  condition  precedent  to  the  476;    Farmers    Phosphate    Co.    v. 

passing    of    title.      Ballantyne    v.  Gill,  69  Md.  537,  1  L.  R.  A.  767; 

Appleton,  82  Me.  570,  seems  flatly  Cunningham  v.  Ashbrook,  20  Mo. 

In  conflict.     In  McFadden  &  Bro.  553;   Turley  v.   Bates,  2  Hurl.   & 

V.    Henderson,    128   Ala.    221,    the  Colt,  200. 

facts  show  that  the  seller  was  ob-  Contra  in  expression  although 
ligated  to  do  certain  other  things,  the  same  decisions  could  have 
which  he  did  not  do,  before  the  been  reached  on  other  and  con- 
buyer  could  weigh.  In  Hoffman  v.  sistent  grounds  stated,  are  An- 
Culver,  7  111.  Ap.  450,  the  real  rea-  drew  v.  Dieterich,  14  Wend.  (N. 
son  for  the  holding  was  that  "pay-  Y.)  31;  Hoffman  v.  Culver,  7  111. 
ment  was  a  condition  precedent  to  Ap.  450;  Ballantyne  v.  Appleton, 
the  passing  of  title".  82  Me.  570. 

22— Lingham    v.    Eggleston,    27  23— Keim   v.   Tupper,   52   N.   Y. 

Mich.    324;    Allen    v.    Greenwood,  550;    H.   M.   Tyler  Lumber  Co.   v. 

147  Wis.  626;  Mount  Hope  Co.  v.  Charlton,  55  L.  R.  A.  301. 


28  THE  LAW  OF  SALES 

referred  to  later  on,  are  rules  of  presumption  only  and 
are  not  rules  of  title.  They  do  not  imply  that  title  must 
pass  if  nothing  remains  to  be  done,  nor  that  it  can  not 
pass  if  something  is  still  to  be  done  by  the  seller.  They 
merely  furnish  formulae  by  which,  in  the  absence  of  any 
indication  of  real  intent,  the  courts  can  reach  a  consist- 
ent assumption  of  what  the  parties  probably  would  have 
intended  had  they  thought  about  the  matter.  This  pre- 
sumption is  fully  subject  to  rebuttal  by  any  particular 
circumstance  in  the  case  that  leads  the  court  to  believe 
the  parties  would  normally  have  intended  otherwise.** 

Likewise,  a  fortiori,  these  rules  for  consistently  ascer- 
taining mere  constructive  intention  give  way  before  any- 
thing which  shows  a  contrary  real  intention. 

Some  few  cases  seem  to  be  opposed  to  the  proposition 
that  these  rules  are  presumptions  only.  Their  verbiage 
states  that  title  has  passed,  or  has  not  passed,  because 
of  the  circumstances,  as  a  matter  of  law.  To  some  extent 
this  is  due  to  a  feeling  that  unless  credit  is  expressly 
given  title  can  not  be  presumed  to  have  passed  till  pay- 
ment has  been  made,  and  that  until  the  price  is  deter- 
mined payment  can  not  be  made.*^  But  this,  as  has  been 
noted,  is  in  conflict  with  the  general  rule  that  title  may 
have  passed  even  though  payment  has  not  been  made, 
and  out  of  harmony  with  the  cases  holding  that  no  pre- 
sumption adverse  to  the  passing  of  title  arises  when  the 
buyer  is  himself  to  ascertain  the  price.  Examination 
shows  this  statement  of  irrebuttable  rule  to  be  usually 
verbiage  only  and  that  in  the  particular  case  the  pre- 
sumption is  in  fact  unrebutted  and,  as  a  presumption 
only,  would  lead  to  the  same  result.'*®    The  writer  does  not 

24 — Wilkinson    v.    Holiday,    33  (n.  s.)   1.     Martineau  v.  Kitchin, 

Mich.    386;     Byles    v.    Colier,    54  L.    R.    7    Q.    B.    436;    Lingham   v. 

Mich.  1;  Graff  v.  Fitch,  58  111.  373;  Eggleston,  27  Mich.  324;    Ellis  & 

Lynch  v.  Merrill,  72  W.  Va.  514,  46  Myers  Lumber  Co.  v.  Hubbard,  123 

L.   R.   A.    (n.   s.)    192;    Morrow   v.  Va.  481,  96  S.  E.  754. 

Reed,  30  Wis.  81;  State  v.  O'Neil,  ^ 

58  Vt.   140;   many  authorities  are  25— Ante,  p.  ^4. 

collected  in  the  note  in  26  L.  R.  A.  26— Hamilton  v.  Grordon,  22  Ore. 


TRANSFER  OF  TITLE  29 

know  of  an  accepted  case  in  which  evidence  sufficient  to 
rebut  the  presumptions  has  been  ignored  on  the  ground 
that  the  rule  was  conclusive  and  not  presumptive.  Much 
of  the  confusion  of  expression  arises  from  confusion  in 
thought  wdth  the  rule  of  law  that  title  can  not  pass, 
whatever  the  intent,  until  property  has  been  identified. 
Sometimes  this  identification  is  to  be  by  measuring  off 
from  a  larger  lot  and  such  measuring  by  way  of  identifi- 
cation has  been  confused  with  the  measuring  of  identi- 
fied property  in  order  to  ascertain  total  price.  The 
ensuing  conflict  of  expression  is  unfortunate,  but  no 
real  conflict  of  holding  seems  to  have  arisen.^' 

Delivery  to  Carrier. — The  delivery  of  property 


to  a  carrier  for  transportation  to  the  buyer,  in  the 
absence  of  anything  else,  raises  a  presumption  of  intent 
to  pass  title,  if  it  has  not  already  passed.  As  the  matter 
of  passing  title  to  property  by  delivery  to  a  carrier  is 
inextricably  interwoven  with  that  of  specification  of 
property  by  such  delivery,  the  topic  is  left  for  discussion 
under  the  latter  subject. 

Agreement  by  Seller   to   Deliver. — An   under- 


taking by  the  seller  to  deliver  the  goods  to  the  buyer  at  a 
particular  place  seems  occasionally  to  have  led  to  a  hold- 
ing that  title  did  not  pass  until  such  delivery  had  been 
accomplished.  In  Gibson  v.  Inman  Packet  Co.,^*  the  plain- 
tiff liad  sold  cotton  to  B  ''to  be  delivered  at  N  in  mer- 
chantable shape".    It  was  delivered  to  the  defendant,  as  a 

557;  Joyce  v.  Adams,  8  N.  Y.  291;  or  left  to  a  jury  under  proper  in- 

Pinckney  v.  Darling,  3  App.   Div.  structlons?     There  appears  to  be 

(N.   Y.)    553;    Frost   v.   Woodruff,  no    definite    answer    to    this.      In 

54  111.   155.  some  cases  the  decision  has  been 

27 — If   there    are    facts    in   the  made  by  the  court.    In  some  cases 

particular  case  which  it  is  argued  it  has  been  left  to  the  jury. 

show  a  real  intent,  in  conflict  with  Lynch  v.   O'Donnell,   127   Mass. 

the  ordinary  legal  presumption,  is  311;    Lingham    v.    Eggleston,    27 

the  decision  whether  they  do  in  Mich.  324. 

truth    suffice    to    rebut    that    pre-  28—111  Ark.  521,  Ann.  Cas.  1916 

sumption  to  be  made  by  the  court,  A  1043. 


30  THE  LAW  OF  SALES 

carrier,  consigned  to  B  at  N,  and  was  damaged  through 
the  negligence  of  the  defendant  before  delivery.  On  suit 
by  the  plaintiff  to  recover  for  this  loss  the  defendant 
contended  that  the  plaintiff  was  not  the  proper  person 
to  bring  suit  as  he  had  parted  with  title  by  his  shipment 
to  the  buyer.  The  court  admitted  the  primary  presump- 
tion to  be  that  title  had  passed,  but  held  that  a  contrary 
intention  was  shown  by  the  agreement  to  deliver  in  mer- 
chantable shape.^^  In  Brown  v.  Adair  ^°  the  buyer  of 
fertihzer  set  up,  in  defense  to  an  action  for  the  purchase 
price,  a  statute  of  the  state  making  such  sales  void  unless 
certain  tags  were  attached  to  the  bags  of  fertilizer  at 
time  of  sale.  The  seller  proved  that  tags  were  attached 
at  time  of  contract  to  sell.  The  court  held,  however,  that 
inasmuch  as  the  sale  was  to  be  "f.  o.  b."  at  a  certain  place 
the  sale  was  not  consummated  till  delivery  to  that  place 
and  it  must  be  shown  that  tags  were  attached  at  that 
time.^^ 

The  effect  of  an  undertaking  to  deliver  is,  however, 
like  other  matters,  merely  a  circumstance  evidencing 
intention  in  regard  to  title  and  it  will  not  prevail  if  other 
evidence  points  to  a  contrary  intent.^^ 

Some  courts  when  faced  with  an  issue  of  the  effect 
upon  the  passing  of  title  of  an  obligation  to  deliver  have 
left  it  to  the  jury  to  say  what  intent  was  demonstrated 
by  the  agreement  as  to  delivery,  coupled  with  all  the 
other  circumstances.^' 

This  is  quite  in  accord  with  the  rule  laid  down  by  some 
courts  that  where  more  than  one  inference  of  intent  can 
be  drawn  from  undisputed  facts  the  question  of  intent 
must  be  left  to  the  jury.    But  those  courts  which  decide 

29— Accord,  Garvan  v.  N.  Y.  C.  30—104   Ala.   652,  16   So.   439. 

&   H.    R.    R.    R..    210    Mass.    275,  31— Accord,   Ala.    Natl.    Bk.    v. 

holding    that    seller's    "obligation  Parker,  146  Ala.  513. 

to  deliver"  caused  title  to  remain  32 — McElwee     v.     Metropolitan 

in  him   so  that  he  could  sue  the  Lumber  Co.,  69  Fed.  302;  Terry  v. 

carrier  for  negligence.    Westmore-  Wheeler,  25  N.  Y.  520. 

land  Coal  Co.  v.  Syracuse  Lt.  Co.,  33 — Blakiston  v.  Davies,  Turner 

145  N.  Y.  S.  420  semUe.  &  Co.,  42  Pa.  Sup.  Ct.,  390. 


TRANSFER  OF  TITLE  81 

for  themselves  that  an  intent  not  to  pass  title  is  evi- 
denced by  an  undertaking  to  deliver  evidently  feel  that 
a  rule  of  inference  has  grown  up  in  respect  to  it,  just 
as  the  prima  facie  inference  that  intent  to  pass  title  is 
evidenced  by  delivery  to  a  carrier  has  become  a  rule  of 
law  and  is  not  left  to  the  jury.** 

While  the  circumstance  of  a  seller's  agreement  to 
deliver  to  a  particular  place  is  frequently  recurrent, 
there  is  comparatively  little  precedent  which  shows  the 
judicial  idea  of  its  effect  on  title  because  the  question  of 
title  seldom  arises.  When  a  seller  has  contracted  to 
deliver  at  a  certain  place  as  an  integral  part  of  the  con- 
sideration for  the  buyer's  promise  to  pay,  obviously  he 
can  not  recover  the  contract  price,  whether  title  has 
passed  or  not,  until  he  has  made  delivery.  Usually  the 
proinise  to  dehver  is  inseparable  from  the  promise  to 
pass  title,  and  both  promises  form  the  single  considera- 
tion for  the  promise  to  pay.  Therefore  in  cases  arising 
between  seller  and  buyer  themselves  courts  usually 
decide  whether  there  is  an  obligation  to  deliver  or  not 
(and  whether,  if  there  is,  it  has  been  accomplished)  as  a 
condition  precedent  to  recovery,  and  they  do  not  pretend 
to  pass  upon  the  question  of  title.  That  a  seller  who 
has  failed  to  deliver  as  agreed  in  the  contract  can  not 
recover  the  contract  price  is  settled.*^* 

Whatever  be  the  rule  as  to  the  effect  of  a  seller's 
undertaking  to  deliver  at  a  particular  place,  it  must  first 
be  determined  whether  the  seller  did  assume  such  an 
obligation.  If  there  is  doubt  as  to  the  terms  of  the 
agreement  the  question  should,  of  course,  be  left  to  the 

34— Blakiston  v.  Davies,  Turner  Drug  Co.  v.  Priesmeyer,  151  Mo. 

&  Co.,  42  Pa.  Sup.  Ct.,  390;  Danne-  App.  484;  Westmoreland  Coal  Co. 

miller  V.  Kirkpatrick,  201  Pa.  218;  v.  Syracuse  Lt.  Co.,  145  N.  Y.  S. 

Garvan  v.  N.  Y.  C.  &  H.  R.  R.  R.,  420,  which  case  appears  to  have 

210  Mass.  275.  been  decided  on  the  issue  of  title, 

35 — Braddock  Glass  Co.  v.  Irwin  rather  than  on  non-performance  of 

&    Co.,    153    Pa.    440;    Devine    v.  a  condition  precedent;    McLaugh- 

Edwards,  101  111.  138;  Hessig-Ellis  lin  v.  Marston,  78  Wis.  675. 

*See  Uniform  Sales  Act,  Section  19,  Rule  5. 


32  THE  LAW  OF  SALES 

jury.  When  the  question  turns  not  on  disputed  terms  of 
an  agreement,  but  on  a  construction  of  the  meaning  of 
an  admitted  agreement,  the  issue  is  decided  by  the  court. 
A  common  expression  in  agreements  is  that  the  goods 
are  to  be  delivered  **f.  o.  b."  at  a  certain  place.  This  is 
interpreted  to  mean  that  freight  is  to  be  paid  to  that 
place  by  the  seller.  As  to  what  it  means  in  respect  to 
the  seller's  obligation  to  make  safe  delivery  to  that  place, 
as  a  condition  of  the  contract,  courts  are  not  at  all 
agreed.  If  the  agreement  is  'Ho  deliver,  f.  o.  b."  it  is 
clearly  an  undertaking,  as  it  reads,  to  deliver.  But  the 
conflict  is  over  agreements  not  so  clear,  as  where  the 
contract  is  to  ''sell"  at  a  named  price,  "f.  o.  b.  destina- 
tion". Some  courts  have  held  that  such  an  agreement 
implies  an  obligation  to  deliver.'^  Others  have  decided 
the  contrarj^  and  held  that  despite  such  a  term  in  the  con- 
tract title  passes  on  delivery  to  the  carrier  according  to 
the  usual  presumption.^'* 

Conditions  Precedent  to  Passing  of  Title.— When  the 
agreement  of  sale  clearly  indicates,  expressly  or 
impliedly,  that  payment  is  to  be  made  "on  delivery  of 
possession"  there  is  much  conflict  as  to  whether  it  shall 
be  presumed  that  the  parties  intend  payment  as  a  condi- 
tion precedent  to  passing  of  title  as  well  as  to  the  deliv- 
ery of  possession.  As  has  already  been  noted,  the  fact 
that  delivery  of  possession  has  not  been  made,  nor  the 
price  paid,  does  not  preclude  the  passing  of  title.  On 
the  contrary,  title  is  presumed  to  have  passed  if  nothing 
remains  to  be  done  by  the  seller,  despite  non-delivery 
and  non-payment.    Even  the  fact  that  the  buyer  can  not 

36— Ala.  Natl.  Bk.  V.  Parker,  146  agreement  that  buyer  might  de- 
Ala.  513 :  Brown  v.  Adair,  104  Ala.  duct  cost  of  freight  from  purchase 
652.  price    held    not    to    prevent    title 

37 — Burton    &    Beard    v.    Naco-  passing   on    shipment;    Neimeyer 

doches   Co.,  —  Tex.   Civ.  Ap.  — ,  Lumber  Co.  v.  Burlington   R.   R., 

161    S.   W.    25;    Twitchell-Chaplin  54  Neb.  321;   U.  S.  v.  Andrews  & 

Co.    v.    Radovsky,    207    Mass.    72,  Co.,  207  U.  S.  229. 

*See  Uniform  Sales  Act,  Section  5. 


TRANSFER  OF  TITLE  33 

take  possession  until  payment  does  not  necessarily  indi- 
cate that  title  has  not  passed.  But  a  stipulation  for 
"cash  on  delivery"  may  denote  an  intention  not  to  pass 
even  title  until  payment.  As  one  court  puts  it,^^  ''A 
sale  for  cash  is  not  necessarily  a  conditional  sale.  The 
phrases  'terms  cash'  and  'cash  down'  may  or  may  not 
import  that  payment  of  the  price  is  made  a  condition 
precedent  to  the  transfer  of  the  title,  according  to  the 
intent  of  the  parties.  If  by  the  use  of  these  terms  the 
parties  understand  merely  that  no  credit  will  be  given, 
and  that  the  seller  will  insist  on  his  right  to  maintain 
possession  of  the  goods  until  the  payment  of  the  price, 
the  sale  is  still  so  far  completed  and  absolute  that  the 
property  passes;  but  if  it  is  to  be  understood  that  the 
goods  are  to  remain  the  property  of  the  seller  until  the 
price  is  paid,  the  sale  is  conditional  and  the  title  does  not 
pass".  This  statement  is,  of  course,  in  absolute  accord 
with  all  the  authorities,  i.  e.,  that  the  intention  of  the 
parties  governs. 

''Cash  Sales." — But  the  question   still  remains, 


what  intent  is  indicated  by  the  stipulation  for  cash  on 
delivery.  Does  it  mean  "cash  before  delivery  of  title'* 
or  only  "cash  before  delivery  of  possession"? 

When  the  contract  clearly  calls  for  cash  on  delivery 
and  no  delayed  time  for  pajTnent  has  apparently  been 
contemplated,  the  preponderance  of  authority  treats  the 
agreement  as  making  payment  a  condition  precedent  to 
delivery.'®* 

38— Clark  v.  Greeley,   62  N.  H.  pie's  State  Bk.  v.  Brown,  Kan.,  23 

394.  L.  R.  A.  (n.  s.)  824;  Lentz  v.  Flint 

39— Can.  Nor.  R.  R.  v.  No.  Miss.  &  P.  M.  Ry.,  53  Mich.  444;  Hamra 

R.    Co.,    209   Fed.    758;    Hirsch  v.  Bros.   v.   Herrell,   Mo.,   200   S.   W. 

Lumber    Co.,    69    N.    J.   L.    509;  776;   Eaton  v.  State,  16  Ala.  405, 

Hughes  V.  Knoth,  138  N.  C.  105;  78    So.    321;    Piano    Co.    v.    Piano 

Ocean  S.  S.  Co.  v.  So.  States  Naval  Co.,  85  O.  S.   196,  "If  in  such  an 

Stores  Co.,  Ga.,  89  S.  E.  383 ;  Peo-  agreement    there    is    no    mention 

♦See  Uniform  Sales  Act,  Section  19,  Rule  1.    This  is  the  only  possible 
reference  to  the  subject  in  the  act. 


34  THE  LAW  OF  SALES 

But  when  it  is  agreed  that  payment  may  be  delayed 
for  a  time  after  the  date  of  the  contract,  then,  even 
though  the  contract  stipulates  for  "payment  on  deliv- 
ery", the  tendency  is  to  hold  that  title  passed  according 
to  the  usual  rules  of  presumption  and  only  the  buyer's 
right  to  possession  is  held  up  till  payment. 

The  term  ''cash  sale"  is  usually  confined  in  its  strictly 
legal  use  to  transactions  in  which  the  court  beheves  that 
the  parties  intended  payment  to  be  a  condition  precedent 
to  the  passing  of  title.  But  in  common  use,  "cash  sale" 
may  also  refer  to  an  intent  of  the  seller  merely  to  hold 
possession  till  payment — to  give  no  credit,  although  pass- 
ing title.  Because  of  this  double  meaning,  the  term  itself 
means  nothing  certain,  and  its  use  is  apt  to  be  misleading. 

If  it  be  decided  that  the  parties  did  in  fact  intend  pay- 
ment to  be  a  condition  precedent  to  the  passing  of  title, 
then  even  the  delivery  of  possession  to  the  buyer  does 
not  vest  title  in  him  until  the  expected  payment  is  forth- 
coming. But  the  condition  precedent  of  payment  may 
be  waived  by  the  seller,  and  his  leaving  the  buyer  in 
possession  for  an  undue  length  of  time  after  failure  of 
payment  will  be  looked  upon  as  such  a  waiver.*" 

of  the  terms  of  payment  the  pre-  define  "cash  sale",  but  the  courts 

sumption  is  that  it  is  a  cash  sale  have  taken  it  to  mean  a  stipula- 

and    that    delivery    of    the    goods  tion    for   cash    on    delivery.      See 

(i.   e.,  delivery  of   title)    and  the  Charleston  R.  R.  Co.  v.  Pope,  122 

payment   of  the   price   are   to   be  Ga.   577;    Flanney   v.   Harley,   117 

simultaneous".  Ga.   483. 

Intent  left  to  the  jury  as  though  40 — Freeh  v.  Lewis,  218  Pa.  141, 

it  were  a  question  of  fact,  Richard-  11   L.   R.  A.    (n.   s.)    948.     In  this 

son   V.   Insurance   Co.,    136    N.    C.  case  the  question  of  waiver  was 

314;  Boyd  v.  Bank  of  Mercer,  174  held  to  be  one  of  law  for  the  court 

Mo.    Ap.    431;     Skinner,    etc.,    v.  and   not   to   be   left   to   the   jury. 

Lemmert   Furniture   Co.,   182   Mo.  Compare,  Manchester  Loco.  Wks. 

Ap.  549.  v.    Tniesdale,    44    Minn.    115    (in 

A  statute  of  Georgia    (Code  of  equity) ;  Fishback  v.  Van  Dusen  & 

1895,  sec.  3546)  provides  that  in  a  Co.,  33  Minn.  111. 
"cash  sale"  of  certain  goods  title  Whether   there   is   a   waiver  or 

shall     be    deemed     not     to    have  not  is  a  question  for  the  jury,  Os- 

passed  till  payment.     It  does  not  born  v.  Gantz,  60  N.  Y.  540. 


TRANSFER  OF  TITLE  35 

'*0.  0.  D. " — At  this  place  it  must  be  noted  that  the  pre- 
sumption, that  "cash  on  delivery"  means  "cash  before 
delivery  of  title",  does  not  apply  where  the  stipulation 
does  not  appear  at  the  time  of  making  the  contract  itself, 
but  is  stated  only  when  the  seller,  in  shipping  the  goods 
to  the  buyer,  has  directed  the  carrier  to  collect' on 
delivery.  This  is  the  usual  "C.  0.  D."  shipment.  In 
general  the  letters  C.  0.  D.  are  interpreted  as  meaning 
"collect  on  delivery",  but  sometimes  as  "cash  on 
delivery '  '.*^  In  such  case  the  preponderance  of  authority 
treats  the  stipulation  as  a  condition  precedent  to  delivery 
of  possession  only  and  as  not  affecting  the  title. 

Two  decisions  in  Missouri  exemplify  this  important 
difference  between  a  sale  for  "cash  on  delivery"  and  a 
shipment  "C.  0.  D."  In  State  v.  Rosenberger,*^  there 
was  a  sale  of  goods  unidentified  at  the  time  of  contract 
but  subsequently  appropriated  by  shipment  to  the  buyer. 
This  shipment  was  "C.  0.  D."  Nevertheless  the  court 
held  that  only  possession  was  intended  to  be  conditioned 
on  payment  and  title  passed  at  the  time  of  shipment.  In 
Johnson-Brinkman  Co.  v.  Central  Bank,"  the  plaintiff 
sold  and  delivered  certain  specified  property  to  the 
buyer.  The  conditions  at  the  time  of  sale  were  "cash 
on  delivery".  As  the  check  given  in  payment  turned 
out  worthless,  the  court  held  that  there  was  no  pay- 
ment, that  the  intention  was  not  to  pass  title  until 
payment,  and  therefore  that  title  had  not  passed. 

By  what  is  probably  the  weight  of  authority  numer- 
ically, as  well  as  logically,  a  C.  0.  D.  restriction  on  the 
carrier  is  held  not  to  rebut  the  intention  to  pass  title 
which  is  ordinarily  presumed  from  the  delivery  to  the 
carrier.  These  courts  give  the  C.  0.  D.  instruction  an 
effect  consistent  with  the  presumption  of  intent  to  pass 
title,  by  treating  it  as  a  seller's  retention  of  possession, 
only,  for  the  sake  of  his  seller's  lien.    In  State  v.  Mul- 

41— Newhook  v.  Ryan,  9  Newf.  42 — 212  Mo.  648,  approved  in 
220.  State  v.  Brewing  Co.,  270  Mo.  100. 

43—116  Mo.  556. 


36  THE  LAW  OF  SALES 

len,**  a  resident  of  a  county  in  which  sale  of  liquor  was 
prohibited,  ordered  Mullen,  a  dealer  living  in  a  non-pro- 
hibition territory,  to  ship  him  liquor  C.  0.  D.  The  de- 
fendant did  so  ship  it  as  ordered  and  was  indicted  for 
making  a  sale  of  liquor  in  the  dry  county.  The  court 
dismissed  the  charge,  on  the  ground  that  title  passed 
when  the  liquor  was  delivered  to  the  carrier,  although 
by  the  instruction  to  the  carrier  to  collect  on  delivery 
the  seller's  right  of  possession  was  retained.  In  Keller 
V.  Texas,"  the  court  went  so  far  as  to  declare  unconsti- 
tutional a  statute  of  the  state  which  attempted  to  fix  the 
point  of  destination  of  C.  0.  D.  shipments  of  liquor  as 
the  place  of  sale,  on  the  ground  that  title  really  passed, 
in  such  cases,  at  the  delivery  to  the  carrier  and  the 
statute  was  an  unauthorized  interference  with  the  right 
of  persons  living  in  non-prohibition  territory,  to  make 
sales  in  that  territory.*^ 

This  holding  that  shipment  *  *  C.  0.  D. "  is  intended  only 
to  leave  possession  dependent  on  payment  is,  as  a  prac- 
tical matter,  wise,  since  it  gives  a  very  real  meaning  and 
effect  to  the  C.  0.  D.  instructions  while  at  the  same  time 
adhering  to  the  fundamental  proposition  that  delivery  to 
a  carrier  shows  a  prima  facie  intent  to  pass  title. 
Whether  it  is  wholly  consistent  with  the  reasons  on  which 
the  latter  presumption  is  founded  depends  upon  what 
those  reasons  are,  and  as  the  courts  are  anything  but 
explicit  concerning  the  latter  we  are  now  practically  con- 
strained to  accept  the  rule  as  one  which  is  wholly  reason- 

44 — 78  O.  S.  358,  125  Am.  St.  710.  that  a  shipment  C.  O.  D.  passes 

45 — Tex.,  1  L.  R.  A.  (n.  s.)  474.  title,  but  retains  possession  in  the 

46 — A  similar  statute  of  Mich-  seller,  are,  Jones  v.  U.  S.,  170  Fed. 

Igan,  Sec.  5051,  Howell's  Statutes,  1,  24  L.  R.  A.  (n.  s.)  143;  People  v. 

was  upheld  in  People  v.  Brewing  Converse,  157  Mich.  29;   Pilgreen 

Co.,  166  Mich.  292,  but  the  court  v.  State,  71  Ala.  368;  State  v.  Ros- 

said  that,  independent  of  the  stat-  enberger,   212   Mo.    648;    State   v. 

ute,    the    sale,    by   the   weight   of  Palmer,  170  Mo.  App.  90;  Keller  v. 

authority,  would  have  taken  place  State,  Tex.     ,  87  S.  W.  669;   Tex. 

at  the  point  of  shipment.     In  ac-  Seed,   etc.,   Co.   v.   Schnoutze,  209 

cord  with  the  general  proposition  S.  W.  495. 


TRANSFER  OF  TITLE  37 

able,  but  whose  precise  and  original  reason  for  being  has 
been  lost.*''^  Furthermore,  this  rule  that  *'C.  0.  D." 
affects  possession  only  gives  a  very  real  protection  to 
the  seller.  It  throws  on  the  buyer  the  risk  of  loss,  makes 
him  liable  for  the  price  and  yet  gives  the  seller  complete 
protection  if  the  buyer  fails  to  pay.  It  is  precisely 
what  a  wise  seller  ought  to  mean. 

A  minority  of  courts  hold,  despite  the  usual  rule  re- 
specting delivery  to  a  carrier,  that  an  instruction  to  the 
carrier  to  deliver  only  on  payment  rebuts  the  presump- 
tion that  the  shipper  intended  to  pass  title.  Thus  in 
State  v.  O'Neil,*^  the  facts  were  essentially  identical  with 
those  of  State  v.  Mullen,  supra,  and  the  decision  quite  op- 
posite. Liquor  ordered  by  a  resident  of  Vermont  from  a 
firm  in  New  York  was  shipped  to  the  buyer  with  C.  0.  D. 
instructions.  The  issue  was  whether  this  constituted  a 
sale  in  New  York  or  in  Vermont.  The  court  said  that 
passing  of  title  was  a  question  of  intent,  and  determined 
the  intent  in  this  case  not  so  much  as  a  matter  of  pre- 
sumption as  one  of  actuality  which  could  be  truly  de- 
termined from  the  circumstances.  ''It  is  difiScult",  said 
the  court,  * '  to  see  how  a  seller  could  more  positively  and 
unequivocally  express  his  intention  not  to  relinquish  his 
right  of  property  or  possession  in  goods  until  payment 
of  the  purchase  price  than  by  this  method  of  shipment. 
We  do  not  think  the  case  is  distinguishable  in  principle 
from  that  of  a  vendor  who  sends  his  clerk  or  agent  to 
deliver  the  goods,  or  forwards  them  to,  or  makes  them 
deliverable  upon  the  order  of,  his  agent,  with  instructions 
not  to  deliver  them  except  on  payment  of  the  price,  or 
performance  of  some  other  specified  condition  precedent 

47— One  court  however  seems  to  the    point   of   shipment   notwith- 

bave  gone  unduly  far  and  to  have  standing    the    seller    had    agreed 

ignored  the  real  and  expressed  in-  that  the  buyer  would  not  have  to 

tent  of  the  parties  in  favor  of  the  take  the  whiskey  ordered  unless 

merely  constructive  presumption,  he  wanted  to,  and  that  it  would 

In  Golightly  v.  State,  49  Tex.  Grim.  not  be  his  whiskey  until  paid  for. 

Ap.  44,  2  L.  R.  A.  (n.  s.)  383,  the  48—58  Vt   140 
court  held  that  title  had  passed  at 


38  THE  LAW  OF  SALES 

by  the  vendee.  The  vendors  made  the  express  company 
their  agent  in  the  matter  of  the  dehvery  of  the  goods, 
with  instructions  not  to  part  with  the  possession  of  them 
except  upon  prior  or  contemporaneous  receipt  of  the 
price.  The  contract  of  sale  therefore  remained  inchoat  or 
executory  while  the  goods  were  in  transit,  or  in  the  hands 
of  the  express  company,  and  could  only  become  executed 
and  complete  by  their  delivery  to  the  consignee.  There 
was  a  completed  executory  contract  of  sale  in  New  York ; 
but  the  completed  sale  was,  or  was  to  be,  in  this  state. '  '*® 

The  answer  of  other  courts  to  this  reasoning  is,  as 
has  been  said,  that  the  illustrations  given  by  the  court  are 
all  indicative  of  an  intent  to  retain  possession,  but  not 
necessarily  an  intent  to  retain  title.  Since  retention  of 
possession  is  in  harmony  with  the  usual  effect  of  unre- 
stricted delivery  to  a  carrier,  and  retention  of  title  is 
not  in  harmony,  the  weight  of  authority  is  also  the  more 
logical  authority.* 

In  at  least  one  case  the  intention  evinced  by  a  shipment 
C.  0.  D.  has  been  treated  not  as  a  matter  of  construction 
for  the  court,  but  as  a  fact  to  be  left  to  the  jury.^° 

Rebuttal  of  Presumptions. — As  has  already  been 
pointed  out,  these  principles  of  decision  are  all  rules  of 
presumption  only,  or  what  may  better  be  called  rules  of 
judicial  custom,  for  construing  a  conventional  intention 
as  to  title  in  cases  where  no  real  intention  is  evident.  As 
the  real  intention,  however,  is  the  governing  factor  in 
the  passing  of  title,  they  all  give  way  before  any  evidence 

49— Accord,  E.  M.  Brash  Cigar  Note;  2  Id.  383. 

Co.  V.  Wilson,  32  Okla.  153;  Lane  It    must    be    remembered    that 

V.  Chadwick,  146  Mass.  68;   Hen-  even   this   minority    of   decisions 

derson  v.  Lauer  &  Son,  Cal.,  181  does  not  apply  to  cases  of  sales  of 

Pac.  811,  a  decision  undoubtedly  specific  property  where  there  was 

affected  by  other  matters;  Crabbe  no  provision  for  cash  at  the  time 

V.  State,  88  Ga.  584;  State  v.  Goss,  of  making  the  contract. 

59   Vt.   266.     See   cases  collected,  50 — Com.    v.    Tynnauer,   33    Pa. 

both  sides,  24  L.  R.  A.  (n.  s.)  143,  Sup.  Ct.  604. 

•See  Uniform  Sales  Act,  Section  19,  Rule  4,  (2). 


TRANSFER  OF  TITLE  39 

of  real  intention.  Such  evidence  may  take  any  conceiv- 
able form;  it  may  be  of  any  degree  of  persuasiveness. 
The  same  piece  of  evidence  that  persuades  the  court  not 
to  follow  the  conventional  rule  in  one  case,  may  be 
treated  by  another  court  as  quite  insufficient.  These 
other  matters  of  possible  evidence  are  not,  however, 
sufficiently  recurrent  for  any  custom  of  decision  based 
on  them  to  have  grown  up.  "When,  therefore,  a  par- 
ticular case  presents  facts  not  precisely  covered  by  the 
few  rules  of  presumption  just  discussed,  the  question 
of  title  depends  upon  the  influence  of  these  facts,  backed 
by  the  persuasiveness  of  counsel,  upon  the  particular 
judge.  If  counsel  can  find  some  other  case  in  which 
similar  facts  have  been  judicially  held  to  show  a  certain 
intention,  the  later  court  may  choose  to  follow  the  earlier 
decision — or  it  may  choose  to  form  its  o^\ai  independent 
conclusion  of  fact.  Undoubtedly  particular  precedents 
have  some  influence,  but  there  is  no  rule,  no  established 
judicial  custom,  other  than  those  few  already  stated. 

Expressed  Intent.  —  Whenever  the  parties  have 
expressed  any  intention  in  respect  to  the  passing  of  title, 
there  is  then  no  doubt  of  the  matter  and  title  will  be  held 
to  have  passed,  or  not  to  have  passed,  strictly  in  accord 
with  such  intention. 

Conditional  Sales. — Of  this  class  are  those  agree- 


ments commonly  known  as  ' '  conditional  sales ' '.  These  are 
agreements  in  which  the  parties  have  clearly  provided 
that  title  shall  not  pass  until  the  performance  of  some  con- 
dition upon  the  part  of  the  buyer.  Usually  this  condition 
is  payment  of  the  purchase  price,  but  it  may  be  anything. 
As  between  the  parties,  at  least,  the  courts  consist- 
ently hold  that  the  legal  title  does  not  pass  until  the  con- 
dition has  been  performed.  This  is  thoroughly  settled. 
The  seller,  however,  may  waive  the  performance  of  the 
condition,  and  choose  to  pass  title  anyhow,  or  he  may 
lose  his  retained  ownership  in  other  ways.    These  mat- 


40  THE  LAW  OF  SALES 

ters,  and  the  rights  of  the  parties  generally  will  be  dis- 
cussed under  the  subject  of  ''Seller's  Remedies ".^^  The 
rights  of  third  persons  toward  the  goods  will  be  discussed 
under  that  subject.^^  The  point  here  pertinent,  is  simply 
that,  as  between  the  parties,  the  intention  to  retain  title 
until  performance  of  the  condition  will  be  given  full  effect. 
Conversely,  since  title  can  not  pass  except  by  mutual 
agreement,  it  follows  that  the  buyer's  intent  must  be 
considered  as  well  as  that  of  the  seller.  If  the  facts  show 
clearly  that  the  buyer  has  not  intended  to  take  title,  it 
will  not  be  treated  as  having  passed.^^ 

Identification  of  Property  Sold 

So  far  we  have  been  considering  the  passing  of  title  to 
property  which  is  identified  by  the  terms  of  the  agree- 
ment at  the  time  it  is  entered  into.  Many  agreements 
to  sell  and  buy,  however,  relate  to  property  having  no 
specific  individuality  at  the  time.  Individuality,  as  here 
used,  must  not  be  confused  with  description.  A  contract 
to  sell  which  does  not  describe  the  property  it  refers  to 
is  of  no  effect  at  all  as  a  binding  agreement.  No  court 
could  determine  what  kind  of  property  the  parties  had  in 
mind  so  as  to  be  able  to  fix  damages  in  case  of  its  breach. 
But  a  description  of  property,  sufficiently  clear  and  defi- 
nite to  give  a  contract  vaUdity,  does  not  necessarily  point 
out  any  particular  property.  Thus  if  A  agrees  to  sell  to 
B  the  watch  which  he  holds  in  his  hand,  or  the  wheat 
which  is  in  a  certain  bin,  there  is  no  vagueness  as  to  the 
specific  piece  of  property  considered. 

Specification. — On  the  other  hand,  a  promise  by  A  to 
sell  and  B  to  buy  ''an  Ingersoll  watch",  or  "a  thousand 
bushels  of  A  No.  1  hard,  Minnesota  grown  winter  wheat", 
might  be  definite  enough  to  form  a  binding  contract. 

51 — Post,  p.  99  ff.  the  seller's  right  to  sue  for  the 

52 Post    p    206.  purchase  price  in  case  the  buyer 

refuses   to   take   title   as   agreed. 
53 — See  also  the  discussion  of      p^^^  p^  tj2. 


TRANSFER  OF  TITLE  41 

But  the  particular  watch,  or  the  particular  mass  of  wheat, 
in  respect  to  which  they  intend  to  transfer  title  would 
not  be  known.  In  a  strict  sense,  of  course,  a  description 
which  tells  some  characteristics  of  a  thing,  but  does  not 
give  enough  of  its  characteristics  to  dehmit  it  from  all 
other  things  is  not  a  complete  description.  Perhaps  &uch 
a  thing  is  not,  precisely  speaking,  ''described".  But,  in 
very  common  usage,  to  ''describe"  a  thing  is  not  neces- 
sarily to  "particularly  identify"  it.  Hence  we  may 
properly  speak  here  of  "described",  but  not  "particu- 
larized" or  "identified"  property.  In  the  customary 
law  parlance  this  particular  identification  is  called 
"specification",  and  property  described  but  not  delimited 
from  all  other  property  is  "unspecified". 

The  concept  of  ' '  ownership ' '  requires  not  only  a  per- 
son in  whom  certain  rights  exist,  but  a  definite  and  par- 
ticular object,  tangible  or  intangible,  to  which  those 
rights  relate.  There  can  not  be  an  owner  mthout  a 
thing  owned.  A  thing  which  is  not  so  described  as  to 
have  an  individuality  of  its  own,  apart  from  all  other 
things  of  certain  like  characteristics,  has  no  existence  in 
the  eyes  of  the  law.  Until  there  is  such  a  specification  as 
will  create  individuality  of  existence  there  can  be  no  own- 
ership. Consequently,  no  matter  how  clearly  parties 
may  intend  to  pass  the  ownership  of  something  which 
they  describe  as  "an  Ingersoll  watch,"  there  is  no 
"ownership"  in  existence  to  be  passed  until  they  have 
somehow  indicated  the  particular  watch  to  which  they 
intend  the  rights  of  ownership  to  attach."* 

54 — "That    the    subject   thereof  until  the  particular  property  which 

must  be  specific  is  essential  to  the  is  the  subject  of  the  contract  be- 

validity  of  every  contract  of  bar-  comes  ascertained.     This  is  true 

gain  and  sale.     It  inheres  in  the  independently  of  the  intention  of 

very  nature  of  the  transaction  that  the  vendor  or  vendee."     Ellis   & 

a    bargain    and    sale   can    not   be  Myers    Lumber    Co.    v.    Hubbard, 

made   of  chattels   not  yet   identi-  Va.  96  S.  E.  754. 

fied;  the  ownership  cannot  change  Dunn  v.   Georgia,   82   Ga.   27,  3 

the  property  or  title  can  not  pass,  L.  R.  A.  199.     Sale  of  liquor  was 

*See  Uniform  Sales  Act.  Section  17. 


42  THE  LAW  OF  SALES 

It  follows,  therefore,  that,  under  the  frequent  contracts 
to  buy  and  sell  described,  but  not  then  specified,  property, 
no  title  can  possibly  pass  until  the  parties  shall  particu- 
larly point  out  the  property  in  respect  to  which  they  are 
dealing.  It  logically  follows  also  that  the  parties  must 
agree  in  thus  specifying  the  particular  thing  whose  own- 
ership one  intends  to  sell  and  the  other  to  receive. 

The  cases  show  a  number  of  settled  customs  of  the 
courts  in  deciding  whether  there  has  been  a  specification 
of  property  by  the  seller  and  an  agreement  in  that  speci- 
fication by  the  buyer. 

Specification  as  Passing  Title. — When  the  parties 


have  agreed  in  specifying  the  particular  property  which 
their  contract  of  sale  is  to  affect,  there  still  remains  the 
question  of  when  they  intended  title  to  pass.  Whatever 
their  intention,  it  could  not  have  passed  until  specifica- 
tion. By  making  the  specification  did  they  intend  it  then 
to  pass?  These  are  two  distinct  issues,  subsequent  one 
to  the  other,  to  be  sure,  but  independent.    Nevertheless 

prohibited  in  D  county,  but  not  in  seller,    the    sale    is    incomplete. 

F  county.    The  appellant,  who  had  They  must  be  ascertained,  desig- 

a    stock    of    liquor    in    F    county,  nated  or  separated  from  the  stock 

agreed  with  a  resident  of  D  county,  or  quantity  with  which  they  are 

while    both    parties    were    in    D  mixed,    before    the    property    can 

county,    to    sell   him    a   gallon   of  pass."    Joseph  v.  Braudy,  112  Mich, 

whiskey.      No     particular     gallon  579;   Mitchell  v.  Abemathy,  L.  R. 

was  specified.   Appellant  was  pros-  A.    1917    C.    6;    First    Natl.    Bank 

ecuted  for   selling  whiskey   in  D  v.  Cazort  &  McGehee  Co.,  123  Ark. 

county.     The  court  held  that  the  605,  186  S.  W.  86;  Taylor  v.  Fall 

transaction  could  be  nothing  but  River  Iron  Works,  124  Fed.  826; 

an  "executory  contract,"  and  not  Gardiner  v.  Suydam,  7  N.  Y.  357; 

a  "sale,"  until  the  subject  matter  Conrad  v.  Penna.  R.  R.  Co.,  214  Pa. 

of   the   agreement   was   identified  98;  Cleveland  v.  Williams,  29  Tex. 

and  that  as  the  identification  did  204,  94  Am.  Dec.  274;  Cassiuelli  v. 

not  take  place  in  the  prohibition  Humphrey  Supply  Co.,  43  Nev.  208, 

county    the    defendant    was    not  183  Pac.  523.    "It  is  common  sense 

guilty  of  a  sale  therein.     Warren  that  a  man  can  not  presently  con- 

V.    Buckminster,    24    N.    H.    336,  vey  title  to  property  which  is  not 

"Where  the  goods  sold  are  mixed  in     existence,"     Gile     v.     Lasalle, 

with  others,  and  are  not  separated  89  Ore.  107,  171  Pac.  741. 
Xrom    the    general    stock    of    the 


TRANSFER  OF  TITLE  43 

the  courts  seldom  made  a  distinction  in  utterance,  and 
"specification"  as  meaning  ''particular  delimitation" 
is  much  confused  with  ''specification"  as  meaning  "an 
intent  to  pass  title"  to  the  property  then  pointed  out. 
As  a  broad  proposition,  it  may  be  said  that  mutual  speci- 
fication of  the  property  to  which  a  contract  of  sale  is 
meant  to  apply  is  taken  by  the  courts  as  showing  a 
mutual  intention  to  pass  title  to  it  at  the  time  of  the 
specification.* 

We  shall  here  discuss  the  matter  of  mutual  specifica- 
tion of  the  particular  property  which  is  to  be  affected  by 
the  contract  as  a  proposition  quite  apart  from  the  mutual 
intention  to  pass  title.  The  former,  necessarily,  comes 
first. 

How  Made. — The  natural  sequence  of  events  is  for 


the  seller  to  determine  upon,  and  to  demonstrate  in  some 
way,  the  particular  chattels  to  which  he  intends  the  con- 
tract to  apply  and  for  the  buyer  then  to  express  his  con- 
sent that  the  contract  shall  apply  to  the  goods  so  pointed 
out.  Hence  it  is  usually  said  that  the  seller  "specifies" 
the  goods  and  the  buyer  "assents"  thereto.  As  we  have 
already  said,  the  specification  and  assent  are  both  neces- 
sary before  the  court  can  hold  that  title  was  intended 
to  pass.  This  mutuality  of  intent  as  to  the  property  to 
be  affected  by  the  contract,  that  is  to  say,  this  specifica- 
tion and  assent,  together,  are  usually  called  the  "appro- 
priation" of  the  goods  to  the  contract.  In  this  sense  of 
the  word,  to  say  that  goods  have  been  "appropriated" 
to  the  contract  means  that  the  seller  and  buyer  have 
agreed  in  the  matter  of  identification.  The  word  appro- 
priation is,  however,  quite  often  used  of  the  act  of  the 
seller  only,  and  leaves  the  assent  of  the  buj^er  still  to 
be  ascertained.^^    It  is  necessary  to  know  of  this  double 

55 — Cyc.  Sales;  Andrews  v.  Du-      Is  used   in  botli   senses;    Wait  v. 
rant,  11  N.  Y.  35;   In  Atkinson  v.      Baker,  2  Exch.  Hep.  1. 
Bell,  8  Barn.  &  Cress.  277,  the  term 

•See  "Uniform  Sales  Act,  Section  19,  Rule  4,  (1). 


44  THE  LAW  OF  SALES 

meaning  to  understand  some  statements  by  the  courts. 
In  this  book  ** appropriation"  -will  be  used  only  of  the 
specification  and  assent  together. 

May  be  Implied. — It  is  not  essential  that  the  speci- 
fication be  in  express  words.  It  may  be  deduced  by  the 
court  as  a  clear  implication  from  the  circumstances. 
Any  act  of  the  seller,  or  of  the  buyer  if  he  is  the  one  to 
act  first,  which  points  out  the  particular  goods  to  which 
he  intends  the  contract  to  apply  will  be  accepted  by  the 
courts  as  a  sufficient  specification  on  his  part.  No  par- 
ticular formality  is  required.  It  is  the  intention  of  the 
party,  that  certain  goods  shall  be  the  ones  affected  by 
the  contract,  which  counts.  Anything  that  clearly  demon- 
strates such  an  intention  is  sufficient. 

Thus,  marking  particular  goods,  conforming  to  the 
description  of  the  contract,  with  the  buyer's  name  is 
enough  to  show  the  seller's  intent  that  those  goods  shall 
be  operated  on  by  the  contract.^®  A  tender  to  the  buyer 
of  certain  goods  will  show  it,*''  or  putting  goods  in  the 
buyer's  bottles  or  sacks.*^  More  often  than  in  any  other 
way,  the  specification  is  shown  by  the  seller's  delivering 
certain  goods  conforming  to  the  contract  to  a  common 
carrier  for  transportation  to  the  buyer.*®* 

Assent  to  Specification. — But,  as  has  already  been 
said,  the  seller  can  not  thrust  upon  the  buyer  title  to 
whichever  goods  he,  the  seller,  may  choose*.  No  title  will 
be  held  to  have  passed  until  the  buyer  has  assented  to 

56 — Andrews  v.  Cheney,  62  N.  It  would  hardly  eeem  to  have 
H.  404;  Mitchell  v.  LeClair,  165  required  a  judicial  decision  to  the 
Mass.  308.  effect  that  removal  from  a  mass 

57-Rider  v.  Kelley,  32  Vt.  268.      °^  ^"  S°°*^^  ^°^  ^°^^  specifies  the 

ones  which  were  sold  as  clearly 

58-Langton  v.  Higgins.  4  Hurl,  ^g  ^^^j^  removal  from  the  mass 
&  Norm.  402.  ^f  ^.j^og^  which  were  sold.     This 

59 — See  authorities  in  subse-  was  the  decision  in  Valentine  v. 
quent  paragraphs.  Brown,  18  Pic.  (Mass.)  549. 

•See  Uniform  Sales  Act,  Section  19,  Rule  4.  (2). 


TRANSFER  OF  TITLE  45 

the  specification.  The  necessity  of  this  assent  is  shown 
by  the  case  of  Andrews  v.  Cheney.^*'  The  parties  had 
contracted  for  the  sale  of  a  certain  quantity  of  goods 
described  as  being  Uke  a  sample.  Subsequently  the  seller 
set  apart  by  themselves  certain  goods  conforming  to  the 
description  and  signified  an  intent  to  pass  title  to  them 
by  marking  them  "svith  the  buyer's  name.  The  buyer 
did  not  call  for  them  at  the  time  agreed  upon  and  they 
were  subsequently  destroyed  by  fire.  The  buyer  who 
had  paid  for  them  in  advance,  sued  to  recover  the  amount 
of  his  payment.  The  court  denied  a  recovery,  on  the 
ground  that  the  seller  might  still  perform  his  contract 
by  delivering  to  the  buyer  other  goods  conforming  to 
the  contract.  As  to  those  of  which  the  seller  had  there- 
tofore shown  his  intention  of  passing  the  ownership 
according  to  the  contract,  the  court  held  title  had  not 
passed.  ''The  property  in  the  goods",  said  the  court, 
"did  not  pass  to  the  plaintiff  by  virtue  of  the  contract, 
for  they  were  not  then  ascertained,  and  may  not  have 
been  in  existence.  The  agreement  on  the  part  of  the 
defendant  was  executory.  *  *  *  A  contract  of  sale  is  not 
complete  until  the  specific  goods  upon  which  it  is  to 
operate  are  agreed  upon.  Until  that  is  done  the  contract 
is  not  a  sale  but  an  agreement  to  sell  goods  of  a  particu- 
lar description.  It  is  performed  on  the  part  of  the 
seller  by  furnishing  goods  which  answer  the  description. 
If,  as  in  the  case  of  a  sale  of  goods  by  sample,  the 
specific  goods  are  not  ascertained  by  the  agreement,  the 
property  does  not  pass  until  an  appropriation  of  specific 
goods  to  the  contract  is  made  with  the  assent  of  both  par- 
ties. If  the  plaintiff  authorized  the  defendant  to  make 
the  selection,  the  property  immediately  on  the  selection 
vested  in  the  plaintiff.  It  not  appearing  that  the  plaintiff 
gave  such  authority,  the  goods  at  the  time  of  the  fire 
were  the  property  of  the  defendant  and  their  destruction 
was  his  loss." 

60—62  N.  H.  404. 


46  THE  LAW  OF  SALES 

In  another  case®^  the  defendant  had  agreed  to  buy  from 
the  plaintiff  a  certain  quantity  of  hops  of  a  described 
quality  to  be  grown  the  following  year.  In  due  time  the 
hops  were  raised  and  tendered  to  the  defendant  in  con- 
formity with  the  agreement.  He,  however,  refused  to 
accept  them.  The  plaintiff  stored  them  on  the  defendant's 
account  and  sued  to  recover  the  contract  price.  The 
court  held  that  he  might  recover  the  amount  of  his  dam- 
age through  the  defendant's  breach  of  contract  in  refus- 
ing to  accept,  but  that  he  could  not  recover  the  full 
amount  of  the  purchase  price.  On  this  latter  point  the 
court  said:  "The  (lower)  court  decided  that  the  rule  of 
damages  was  the  contract  price  which  the  defendants 
were  to  pay  for  the  hops.  This  rule  of  damages  must 
stand  upon  the  principle  that  the  vendor  in  this  case,  by 
offering  to  deliver  and  tendering  to  the  defendants  the 
hops  contracted  to  be  delivered,  thereby  passed  the  title 
to  the  vendees,  so  that  the  hops  so  tendered  became  the 
property  of  the  vendees,  and  the  vendor's  title  to  them 
ceased,  although  the  vendees  refused  to  accept  and  did 
not  accept  of  them.  It  is  to  be  observed  that  this  is  not 
the  case  of  the  sale  of  the  specific  article  and  the  tender 
of  it  to  the  vendee.  *  *  *  But  it  is  a  contract  to  deliver 
at  a  future  day  property  not  then  in  esse;  property 
which  is  to  be  thereafter  produced  by  the  cultivation 
of  the  earth,  and  which  is  to  be  of  a  specified  character 
and  description.  It  comes  by  analogy  within  the  class 
of  contracts  for  the  manufacture  of  goods,  and  for  their 
delivery  at  a  future  day.  In  such  cases,  the  authorities 
have  abundantly  established  the  general  rule  that  the 
article  must  not  only  be  made  and  offered  to  the  vendee, 
but  that  he  must  accept  of  it,  or  it  must  be  set  apart  for 
him  by  his  consent,  before  the  title  to  it  will  vest  in  him. ' ' 

An  even  more  severe  application  of  the  rule  is  illus- 
trated by  the   case   of  Greenleaf  v.   Hamilton.®^     The 

61— Rider  v.  Kelley,  32  Vt.  268,  62—94  Me.  118. 

76  Am.  Dec.  176. 


TRANSFER  OF  TITLE'  47 

defendant  had  ordered  from  the  publishers  one  copy 
of  a  book  called  "Men  of  Progress",  for  which  he  agreed 
to  pay  $35.  A  copy  was  brought  to  his  office  by  the  pub- 
lisher's agent  and,  the  defendant  being  absent,  was  left 
there  for  him.  He  refused  to  pay  and  the  assignee  of 
the  publisher  brought  suit  for  the  agreed  price.  It  was 
held  that  the  plaintiff  could  not  recover  the  full  contract 
price  unless  there  was  an  **  acceptance "  of  the  book  by 

the  defendant,  which  issue  was  ordered  submitted  to  a 
jury.«8 

Implied  Assent. — But  the  buyer's  assent,  like  the 


seller's  specification,  need  not  be  express;  it  may  be 
implied  from  acts,  or  from  the  circumstances  of  the  case. 
If  he  has  already  seen  a  larger  quantity  of  goods  from 
which' those  sold  are  to  be  taken,  it  has  been  held  that 
he  has  assented  to  any  selection  which  the  seller  may 
make  from  that  mass,  or,  in  different  words,  to  have  made 
the  seller  his  agent  to  assent  to  his,  the  seller's,  own 
selection.®*    By  sending  containers  for  the  seller  to  fill 

63 — Buyer's  acceptance  of  sell-  Schneider  v.  O.  P.  R.  R.  Co.,  20 
er's  specification  is  necessary  to  Ore.  172;  Colorado  Springs  L.  S. 
the  passing  of  title;  Moody  v.  Co.  v.  Godding,  20  Colo.  249. 
Brown,  34  Me.  107;  Crowl  v.  Good-  Some  confusion  has  been  caused 
enburger,  112  Mich.  683;  Green-  by  the  holding  of  a  number  of 
leaf  V.  Gallagher,  93  Me.  549;  courts  that  upon  tender  of  goods 
River  Spinning  Co.  v.  Atlantic  conforming  to  the  contract  the  en- 
Mills,  155  Fed.  466;  Tufts  v.  tire  contract  price  can  be  recov- 
Grewer,  83  Me.  407,  even  though  ered  whether  title  has  passed  or 
article  was  especially  manufac-  not.  This  subject  is  discussed 
tured  according  to  buyer's  plans;  P&st,  p.  92  ff. 

Am.  Hide  Co.  v.  Chalkley,  101  Vt.  64— Aldridge   v.   Johnson,   7  El. 

458;   Johnson  v.  Hibbard,  29  Ore.  &   Bl.   885,   "He    (the  buyer)    had 

184,  54  Am.  St.  787;  Lovell  v.  New-  inspected  and  approved  the  barley 

man  &  Son,  142  Fed.  753;  Hoover  in  bulk.    He  sent  his  sacks  to  be 

v.  Maher,  51  Minn.  269;  Jones  v.  filled  out  of  that  bulk.    There  can 

Jennins,  168  Pa.  493.  be  no  doubt  of  his  assent  to  the 

Contra:     Title  passes  on  appro-  appropriation    of    such    bulk    as 

priation  and  tender  by  the  seller  should    have    been    put    into    the 

without  buyer's  consent  to  accept  sacks."    Sawyer  v.  Dean,  114  N.  Y, 

it,  Hyden  v.  Demets,  53  N.  Y.  426;  489. 
Brigham  v.  Hibbard,  28  Ore.  386; 


48  THE  LAW  OF  SALES 

he  has  been  held  to  have  made  the  seller  his  agent  to 
assent  to  the  seller's  specification.  Thus  in  Langton  v. 
Higgins,®^  the  buyer  of  peppermint  oil  which  was  still 
to  be  manufactured  by  the  seller  had  sent  his  own  bot- 
tles to  be  filled  with  the  oil  as  it  should  be  made.  The 
court  held  that  title  passed  when  sufficient  oil  according 
to  the  contract  had  been  put  into  the  bottles,  saying, ' '  The 
buyer  in  effect  says,  *I  will  trust  you  to  deliver  into  my 
bottles,  and  by  that  means  to  appropriate  to  me,  the 
article  which  I  have  bought  of  you. '  On  the  other  hand, 
the  seller  must  be  taken  to  say,  'You  have  sent  your  bot- 
tles and  I  will  put  the  article  into  them  for  you. '  ' '®® 

Receipt  by  Carrier. — The  receipt  of  goods  by  a  car- 
rier for  transportation  to  the  buyer  is  generally  held  to 
constitute  an  assent  by  the  buyer  to  the  seller's  specifica- 
tion. The  carrier,  although  it  may  have  contracted  for 
carriage  only  with  the  seller,  although  it  may  be  held 
not  the  buyer's  agent  for  purposes  of  possession,  and 
although  it  is  to  be  paid  by  the  seller,  is  nevertheless  con- 
sistently treated  as  the  buyer's  agent  to  assent  to  the 
seller's  specification,  if  that  specification  does  in  fact  con- 
form to  the  terms  of  the  contract.  It  is  obvious  that  there 
is  no  real  relation  of  agency  between  the  buyer  and  the 
carrier.  Although  the  seller  can  usually  sue  for  goods 
sold  and  delivered,  the  carrier  is  not  wholly  the  buyer's 
agent  for  purposes  of  possession,  because  the  seller's 
right  to  stop  in  transitu  still  exists.  The  carrier  is  often 
under  contract  only  with  the  seller  and  is  to  be  paid  by  the 
seller.  The  rule  is  a  purely  arbitrary  one,  established 
for  the  sake  of  convenience.  In  fact  there  is  hardly 
authority   for  speaking  of   agency   even   as   a  fiction. 

65—4  Hurl.  &  Norm.  402.  Greenleaf  v.  Hamilton,  94  Me.  118, 

66 — The  question  whether  or  not  but  is  in  general  decided  by  the 

the  buyer  has  consented  to  take  court,  like  all  other  questions  of 

the    particular    thing    which    the  intent  in  this  subject,  as  a  matter 

seller  has  picked  out  is  occasion-  of  accepted  judicial  custom, 
ally   left   to   the   jury   to   decide. 


TRANSFER  OF  TITLE  49 

Rather,  the  courts  have  simply  decided  that  appropria- 
tion is  complete  on  delivery  to  a  carrier  and  its  accept- 
ance of  the  goods  for  carriage,  without  bothering  to 
state  just  how  the  buyer's  necessary  assent  to  the  speci- 
fication is  worked  out.^'' 

Passing  of  Title. — As  has  already  been  said,  the  point- 
ing out  of  goods  as  the  particular  ones  to  which  the  con- 
tract is  to  apply,  and  assent  thereto  by  the  other  party, 
has  no  necessary  connection  with  an  intent  to  pass  title. 
It  may  happen,  and  does  sometimes  happen  in  fact,  that 
the  seller  points  out  the  particular  goods  to  which  he 
intends  eventually  to  pass  title,  mthout  intending  to  pass 
it  at  the  time.  It  is  possible  also  that  the  buyer  may 
consent  to  the  seller's  specification  of  the  particular  goods 
that  are  to  pass,  without  intending  to  take  the  title  at 
once.^' 

But  it  is  presumed  as  a  matter  of  judicial  custom 
unless  the  contrary  appear  that  by  their  specification  and 
assent  the  parties  do  intend  at  the  same  time  to  pass 
title.  Hence  it  is  said  that  title  is  presumed  to  pass  at 
the  instant  of  complete  appropriation.  So  invariable  is 
this  presumption,  that  courts  do  not  make  any  verbal  dis- 
tinction between  specification  and  intent  to  pass  title,  or 
between  assent  and  intent  to  accept  title,  and  frequently 
use  one  in  the  sense  of  the  other. 

Delivery  to  Carrier.— The  delivery  of  goods  to  a 

carrier  for  transportation  to  the  buyer,  therefore,  not 
only  constitutes  an  act  of  specification,  but  is  presumed 
also  to  show  an  intent  to  pass  the  title  to  the  goods  so 
specified.   Conversely,  the  receipt  by  the  carrier  demon- 

67— See  the  authorities  and  dis-  agreed  that  a  certain  article  shall 

cussion    in    the    following    para-  be  delivered  in  pursuance  of  the 

graphs.  contract,  and  yet  the  property  may 

68 — Wait  V.  Baker,  2  Exch.  Rep.  not  pass  in  either  case."   Schreyer 

1,  "The  word  (appropriation)  may  v.   Kimball   Lumber   Co.,   54  Fed. 

mean     that     both     parties     have  653. 


50  THE  LAW  OF  SALES 

strates  both  the  buyer's  assent  to  the  specification  and 
his  intent  to  receive  the  title. 

The  theory  on  which  tliis  holding  is  based  is  anything 
but  clear.  The  courts  usually  dismiss  the  proposition 
with  the  simple  statement  that  the  carrier  is  the  buyer's 
agent  to  accept  the  goods,  or  that  delivery  to  the  carrier 
is  delivery  to  the  buyer.  If  by  "delivery"  and  "accept- 
ance" in  this  connection  the  courts  mean  physical  deliv- 
ery, or  acceptance  of  possession  of  the  tangible  chattel, 
there  is  an  obvious  inconsistency  with  the  proposition 
that  by  a  C.  0.  D.  shipment  title  passes  to  the  buyer  but 
the  possession  is  retained  by  the  seller.®^  Neither  does 
the  idea  of  possession  in  the  buyer,  through  the  carrier 
as  his  agent  for  that  purpose,  conform  to  the  holdings 
that  delivery  to  a  carrier  is  not  delivery  to  the  buyer  so 
as  to  satisfy  the  requirements  of  the  Statute  of 
Frauds.'" 

If  on  the  other  hand  they  mean  delivery  of  the  title — 
the  concept  of  OAvnership  as  distinct  from  the  tangible 
thing  to  which  it  applies — and  its  acceptance  by  the  car- 
rier as  the  buyer's  agent,  the  inconsistency  disappears. 
It  is  perfectly  conceivable  that  the  carrier  may  be  both 
the  buyer's  agent  to  receive  title  and  the  seller's  agent 
to  hold  physical  possession.  This  theory  is  not  contra- 
dicted by  anything  in  the  cases  nor  inconsistent  with 
their  verbiage,  and  it  comes  nearer  to  harmonizing  the 
various  holdings  than  any  other,  but  it  must  be  pointed 
out  that  if  it  be  the  underlying  principle  it  is  not 
expressly  stated  by  the  courts.  The  courts,  as  a  matter 
of  fact,  appear  to  accept  the  rule  that  receipt  of  the 
goods  by  a  carrier  constitutes  an  acceptance  of  title  by 
the  buyer,  without  feeling  called  upon  to  discuss  the  rea- 
son. The  case  of  Johnson  v.  Hibbard''^^  is  characteristic. 
The  court  says,  "In  the  sale  of  articles  or  goods  to  be 

69 — See  discussion  of  C.  O.  D.  See  discussion  under  that  subject, 
shipments,  (mte,  p.  35.  post,  p.  269. 

70— Gatiss  v.  Cyr,  134  Mich.  233.  71—29  Ore.  184.  54  Am.  St.  787. 


TRANSFER  OF  TITLE  51 

manufactured,  it  is  clear  that  no  title  passes  until  their 
manufacture  is  completed,  and  they,  by  the  understand- 
ing and  consent,  express  or  implied,  of  the  parties  to  the 
sale,  have  been  selected  or  designated,  and  set  apart  to 
the  purchaser."  This  statement  that  mutual  consent  is 
necessary  to  the  passing  of  title  is  followed  by  the  simple 
statement,  without  discussion,  that  title  passed  when 
goods  conforming  to  the  contract  were  delivered  to  the 
carrier.  Just  how  delivery  to  the  carrier  shows  the 
buyer's  necessary  consent  the  court  does  not  say.''^^* 

In  Harper  v.  State,  ^'^  the  facts  were  that  a  minor 
living  outside  the  state  had  written  Harper,  a  resident 
of  Arkansas,  to  send  him  a  gallon  of  whiskey.  Harper 
shipped  it  consigned  to  the  buyer,  who  duly  received  it. 
An  Arkansas  statute  made  it  unlawful  to  sell  liquor  to 
a  minor  and  Harper  was  indicted  thereunder.  He  de- 
fended on  the  ground  that  there  was  no  such  statute  in 
the  buyer's  state  and  that  title  had  not  passed  until 
delivery  by  the  carrier  to  the  buyer,  which  had  occurred 
outside  of  Arkansas.  The  court  held  the  indictment  to 
be  good  because  the  sale  had  been  executed,  that  is,  title 

72 — Title  passes  on  delivery  to  Kleine   v.   Baker,   99    Mass.    253; 

carrier.    Dunn  v.  Georgia,  82  Ga.  27,  Harper  v.   State,   91  Ark.   422,  25 

3  I..  R.  A.  199;  Hill  v.  Fruita  Mer-  L.  R.  A.  (n.  s.)  669;  State  v.  J.  W. 

cantile  Co.,  42  Colo.  491,  126  Am.  Kelley   &   Co.,   123   Tenn.   556,   36 

St.    172;    A.    J.    Neimeyer   Co.    v.  L.  R.  A.   (n.  s.)   171;   Loveland  v. 

Burlington  R.  R.,  54  Neb.  321,  40  Dinunan,  81  Conn.  Ill,  17  L.  R.  A. 

L.  R.  A.  534;  Sullivan  v.  Sullivan,  (n.    s.)    1119;    Dentzel    v.    Island 

70  Mich.  583;   Branch  Saw  Co.  v.  Park  Assn.,  229  Pa.  403,  33  L.  R. 

Bryant,  174  N.  C.  355,  93  S.  E.  839;  A.  (n.  s.)  54;  Tyler  Co.  v.  Ludlow 

Third  Natl.  Bk.  v.  Smith,  107  Mo.  Co.,  236  U.  S.  723;  State  v.  Gruber, 

178;    Dr.   A.   P.   Sawyer   Medicine  116  Minn.  221,  45  L.  R.  A.   (n.  s.) 

Co.    V.    Johnson,    178    Mass.    374;  591;     Twitchell-Champlin     Co.    v. 

Presley  Fruit  Co.  v.  St.  Louis,  etc.  Radovsky,  207  Mass.  72;  White  v. 

R.R.,  130  Minn.  121,  153  N.V^.  115;  Schweitzer,  132  N.  Y.  S.  644,  147 

The  Pennsylvania  Co.   v.   Holder-  App.    Div.    544,    citing    Dutton    v. 

man,  69  Ind.  18;  Congdon  v.  Ken-  Solomonson,  3  Bos.  &  Pul.  582. 

dall,  53  Neb.  282;  Hawens  v.  Grand  72a— 91  Ark.  422,  25  L.  R.  A.  (n. 

Island  L.  &  F.  Co.,  41  Neb.  153;  s.)  669. 

*See  Uniform  Sales  Act,  Section  19,  Rule  4,  (2). 


52 


THE  LAW  OF  SALES 


had  passed,  when  the  liquor  was  shipped,  consigned  to 
the  buyer.''^^^ 

A  repudiation  of  the  contract  by  the  buyer  is  held  to 
be  a  revocation  of  the  carrier's  authority  to  receive  the 
goods  for  him.  Consequently  a  subsequent  specification 
of  goods  by  the  seller  and  delivery  of  them  to  a  carrier 
for  transportation  to  the  buyer  does  not  vest  title  in  the 
buyer.  As  one  court  puts  it'^  *'the  direction  not  to  ship 
was  a  revocation  of  the  carrier's  agency  to  receive,  and 
the  plaintiffs  (sellers)  thereby  had  notice  of  the  revoca- 
tion. The  delivery  of  the  goods  to  the  carrier,  therefore, 
was  unauthorized,  and  the  carrier's  receipt  would  not 
charge  the  defendant".'* 


72b — Hill  V.  Fruita  Mercantile 
Co.,  42  Colo.  491,  126  Am.  St.  Rep. 
172;  A.  J.  Neimeyer  Co.  v.  Burling- 
ton R.  R.,  54  Neb.  321,  40  L.  R.  A. 
534 ;  Sullivan  v.  Sullivan,  70  Mich. 
583;  Branch  Saw  Co.  v.  Bryant, 
N.  C,  93  S.  E.  839;  Third  Natl. 
Bk.  V.  Smith,  107  Mo.  178;  Kleine 
V.  Baker,  99  Mass.  253;  State  v. 
J.  W.  Kelley  &  Co.,  123  Tenn.  556, 
36  L.  R.  A.  (n.  s.)  171;  Loveland 
V.  Dinnan,  81  Conn.  Ill,  17  L.  R.  A. 
(n.  s.)  1119;  Dentzel  v.  Island 
Park  Assn.,  229  Pa.  403,  33  L.  R.  A. 
(n.  s.)  54,  in  the  absence  of  any 
countervailing  evidence  trial  court 
should  give  binding  instructions  to 
this  effect  to  jury.  Tyler  Co.  v. 
Ludlow  Co.,  236  U.  S.  723,  infringe- 
ment of  patent  by  sale  of  articles 
occurs  in  the  district  in  which  the 
articles  are  shipped  to  buyer  and 
in  no  other;  State  v.  Gruber,  116 
Minn.  221,  45  L.  R.  A.  (n.  s.)   591. 

The  presumption  has  been 
changed  by  statute  in  South  Caro- 
lina so  far  as  shipments  of  intoxi- 
cating liquor  are  concerned  and  an 
arbitrary  rule  as  to  the  place  of 
sales  substituted  for  it.  Sec.  2080, 
Revisal  of  1905.    This  statute  sim- 


ply provides  that  the  place  of 
delivery  of  intoxicating  liquor 
within  the  state  "shall  be  con- 
strued and  held  to  be  the  place  of 
sale  thereof".  A  similar  statute 
was  enacted  in  Texas — Acts  of 
1901,  p.  262 — providing  that  when 
intoxicating  liquor  was  shipped 
with  a  collection  on  delivery  pro- 
vision the  sale  should  be  deemed 
to  have  occurred  at  the  place  of 
destination.  This  act  was  held 
unconstitutional  on  the  ground 
that  by  the  common  law  presump- 
tion the  sale  took  place  at  point 
of  shipment  and  the  legislature 
could  not,  even  indirectly,  prevent 
the  owner  from  bringing  into  a 
dry  county  liquor  of  which  he  had 
acquired  title  in  another  county. 
Keller  v.  State,  Tex.  Crim.  Ap.,  1 
L.  R.  A.  (n.  s.)  489. 

73 — Unexcelled  Fire-works  Co. 
v.  Pontes,  130  Pa.  536. 

74 — Lincoln  v.  Chas.  Alshuler 
Mfg.  Co.,  142  Wis.  475;  Lipper 
Mfg.  Co.  V.  Morris  &  Co.,  58  Pa. 
Superior  Court  611,  but  holding 
that  buyer's  acceptance  of  them 
from  the  carrier  and  unexplained 


TRANSFER  OF  TITLE  53 

The  authority  of  the  carrier  or  other  agent  to  assent 
for  the  buyer  to  the  passing  of  title,  or  to  accept  delivery 
of  the  goods  so  as  to  pass  the  title  (whichever  theory  be 
chosen)  is  limited  to  cases  where  goods  conforming  to 
the  contract  are  offered.  This  ''agency"  of  the  carrier 
to  receive  the  goods  or  the  title  is  of  course  a  mere  fic- 
tion. As  a  matter  of  fact  a  carrier  would  receive  any 
goods  that  the  seller  might  deliver  to  it  for  transporta- 
tion to  the  buyer.  There  is  no  pretense  that  the  carrier 
examines  them  to  see  whether  they  conform  or  not  to 
the  terms  of  some  contract  of  sale.  The  agency  of  the 
carrier  is  merely  a  legal  construction  apparently  based 
on  expediency  and  operating  to  avoid  conflict  with  the 
rule  that  title  can  not  be  forced  upon  the  buyer  without 
his  consent  to  accept  title  in  the  particular  chattel  to 
which  the  seller  has  chosen  to  pass  title. 

This  constructive  agency,  however,  extends  only  to 
the  acceptance  of  goods  which  conform  to  the  contract. 
Delivery  by  the  seller  to  a  carrier  and  its  receipt  of 
goods  which  do  not  conform  to  the  terms  of  the  contract 
do  not  suffice  to  pass  the  title.  Before  title  will  pass 
in  such  case  there  must  be  some  further  evidence  of 
acceptance  by  the  buyer  of  the  particular  goods  pre- 
sented.'^^* 

The  delivery  to  a  carrier  of  goods  which  the  seller 
asserts  conformed  to  the  description  in  the  contract  is 
prima  facie  evidence  of  specification  and  assent  and  con- 
sequent passing  of  title.     The  burden  is  then  upon  the 

retention  amounted  in  itself  to  livery  to  carrier  of  a  greater  quan- 
acceptance  of  title;  Acme  Food  tity  than  called  for  by  the  con- 
Co.  V.  Older,  64  W.  Va.  255,  17  tract;  but  same  case,  6  Hill  208,  to 
L.  R.  A.  (n.  s.)  807.  effect   that   an    actually    intended 

75 — Johnson  v.  Hibbard,  29  Ore.  gift  of  the  excess  would  pass  title 
184^  54  Am.  St.  787;  Nomordust  to  the  whole;  compare,  The  Iron 
Co.  V.  Eberts  &  Co.,  59  Pa.  Sup.  Cliffs  Co.  v.  Buhl,  42  Mich.  86. 
Ct.  295;  Fogel  v.  Brubaker,  122  Pa.  Hoover  v.  Maher,  51  Minn.  269, 
7;  Skinner  v.  Griffiths,  80  Wash.  delivery  to  carrier  before  the  time 
291,  141  Pac.  693 ;  Downer  v.  stipulated  by  the  buyer  for  ship- 
Thompson,  2  Hill  (N.  Y.)  137,  de-  ment  does  not  pass  the  title. 

*See  Uniform  Sales  Act,  Section  44,  (1),  (2),  (3),  (4). 


54  THE  LAW  OF  SALES 

buyer  to  prove  that  the  goods  so  specified  by  the  seller 
did  not  in  fact  conform  to  the  terms  of  the  agreement. 
If  the  goods  had  been  destroyed  while  in  the  carrier's 
hands  this  proof  would  of  course  be  difficult  to  make  and 
it  is  probable  that  the  seller's  prima  facie  proof  would 
remain  unrebutted.'® 

Other     Circumstances. — Various    other    circum- 


stances have,  by  particular  courts,  been  held  presump- 
tively to  show  an  intent  to  pass  title.  The  circumstances 
are  not  sufficiently  recurrent  to  give  rise  to  a  rule  of 
presumption  and  the  cases  are  therefore  of  value  only  as 
showing  the  general  trend  of  judicial  idea  as  to  what 
indicates  intent  to  pass  title.  This  intent  has  been  pre- 
sumed from  the  manufacture  of  goods  and  their  delivery 
to  a  particular  storage  house  agreed  upon  by  the  parties,'^' 
from  the  seller's  putting  property  conforming  to  the 
contract  into  the  buyer's  sacks  ''^  or  into  bottles  belonging 
to  the  buyer.'^  The  delivery  of  goods  conforming  to  the 
contract  to  persons,  other  than  a  common  carrier,  to 
whom  dehvery  has  been  authorized  by  the  buyer  has  been 
held  to  pass  the  title,  although  the  buyer  had  not  in  any 
other  way  signified  his  acceptance  of  those  particular 
goods.^° 

These  conclusions  are  only  inferences  of  intent  based 
upon  the  facts,  and  this  judicial  assumption  of  probable 
intent  may  be  overthrown  by  any  evidence  of  a  real 
intent  in  conflict  therewith.  That  is  to  say,  no  facts  are 
conclusive,  as  a  matter  of  law,  in  showing  the  intent  of 
the  parties.  Even  the  rule  that  delivery  to  a  carrier 
shows  a  probable  and  presumptive  intent  to  pass  title  is 

76 — Nomordust    Co.    v.    Eberts  78 — Aldridge  v.  Johnson,  7  El. 

Co..  59  Pa.  Sup.  Ct.  295;   Skinner  &  Bl.  885. 

V.  Griffiths,  80  Wash.  291,  141  Pac.  79— Langton  v.  Higgins,  4  Hurl. 

693;    Levy  v.   Radkay,   233   Mass.  &  Nor.  402. 

29,  123  N.  E.  97.  80 — Stewart       v.       Henningsen 

77 — Stewart  v.  Henningsen  Pro-  Produce  Co.,  88  Kan.  521,  50  L.  R. 

duce  Co.,  88  Kan.  521,  50  L.  R.  A.  A.  (n.  s.)  Ill;  Skinner  v.  Griffiths, 

(n.  8.)  111.  80  Wash.  291,  141  Pac.  693. 


TRANSFER  OF  TITLE  55 

rebuttable  by  any  evidence  that  sufiSciently  clearly  shows 
an  intent  not  to  pass  title.  The  counter  evidence  may,  of 
course,  take  as  many  forms  as  the  circumstances  of  the 
case  are  capable  of  assuming. 

Taking  Out  Bill  of  Lading. — Anything  showiilg  for 


which  party  the  carrier  is  expected  to  act  as  bailee  would 
logically  be  .indicative  of  intent  as  to  title.  That  is  to 
say,  a  seller  desiring  to  retain  ownership  would  not  nat- 
urally make  the  carrier  bailee  for  the  buyer.  But  if  he 
intended  to  pass  title  he  would  naturally  make  the  carrier 
the  buyer's  bailee  rather  than  his  own.  Whether  this 
be  the  reason  on  which  courts  have  decided  or  not,  the 
fact  is  that  when,  on  shipment,  a  bill  of  lading  is  taken 
from  the  carrier  by  the  seller,  the  fact  that  he  takes  it 
in  his  own  name,  so  that  the  carrier  becomes  his  o^vn 
bailee,  is  treated  by  the  courts  as  strong  evidence  that 
he  intended  to  retain  title  despite  the  shipment.* 

If  the  seller  takes  the  bill  in  his  own  name  as  bailor, 
that  fact  in  itself  is  held  enough  to  rebut  the  presumption 
that  in  shipping  the  goods  he  intended  to  pass  title.*^ 

Taking  a  bill  of  lading  in  the  name  of  an  agent  of  the 
seller,  or  consigning  to  an  agent  instead  of  to  the  buyer 
also  logically  indicates  an  intent  not  to  pass  title  to  the 

81 — W.  T.  Wilson  Co.  v.  Central  be  paid  by  the  buyer;  Wigton  v. 

Natl.  Bk.,        Tex.  Civ.  Ap.      ,  139  Bowley,   130   Mass.   252;    Emery's 

S.  W.  996;  Dows  v.  National  Exch.  Sons  v.  Irving  Bk.,  25  O.  S.  360; 

Bk.,    91    U.    S.    618;    Rylance    v.  Douglas  v.  People's  Bk.,  86  Ky.  176; 

Walker  Co.,  129  Md.  475;  Jenkyns  Security    State    Bk.    v.    O'Connell 

V.  Brown,  14  Q.  B.  Rep.  496;  Den-  Lumber    Co.,    64    Wash.    506,    117 

field  Onion  Co.  v.  N.  Y.,  N.  H.  &  Pac.  271;  Ward  v.  Taylor,  56  111. 

H.  R.  R.,  222  Mass.  535;  Alderman  494;  Gilbert  v.  Ayoob,  71  Pa.  Sup. 

V.  Eastern  R.  R.,  115  Mass.  233;  Ct.   336;    a   bill   of  lading   in   the 

Armstrong  v.  Coyne,  64  Kan.  75,  shipper's  own  name  "is  inconsis- 

67  Pac.   537;    Willman   Merc.   Co.  tent  with   an   intent  to   pass  the 

V.  Fussy,  15  Mont.  511,  39  Pac.  738;  ownership  of  the  cargo",  Render- 

Sheperd  v.  Harrison,  L.  R.  5  H.  L.  son  v.  Lauer  &  Son,  40  Cal.  Ap. 

116;  Wait  v.  Baker,  2  Exch.  Rep.  696,  181  Pac.  811. 
1,    even    though    freight    was    to 

♦See  Uniform  Sales  Act,  Section  20,  (1),  (2),  (3). 


56  THE  LAW  OF  SALES 

buyer  and  has  been  so  held.  In  Berger  v.  State,^^  Berger 
while  in  a  county  where  sale  of  liquor  was  prohibited 
took  an  order  for  liquor  from  C.  He  transmitted  this  to 
L,  a  dealer  in  a  wet  county,  who  packed  liquor  conform- 
ing to  the  order  and  put  C's  name  on  the  bottle,  but 
shipped  it  by  carrier  to  Berger.  The  latter  delivered  it 
to  C  and  was  thereafter  prosecuted  for  selling  liquor 
within  the  dry  territory.  The  court  said  that  if  the 
shipment  had  been  direct  to  C  title  would  have  passed 
on  delivery  to  the  carrier  outside  the  dry  territory,  but 
that  by  consigning  it  to  his  agent  the  seller  evinced  an 
intent  to  retain  title  and  that,  therefore,  the  sale  took 
place  when  Berger  delivered  the  liquor  to  C.®^ 

Taking  out  a  bill  in  the  name  of  the  buyer  would  not, 
of  course,  have  this  effect,  but  tends  rather  to  strengthen 
the  presumption  that  by  delivery  to  the  carrier  the  seller 
intended  to  pass  the  title.®* 

The  courts  have  gone  so  far  in  giving  consideration  to 
the  indication  of  intent  shown  by  the  bill  of  lading  as 
to  hold  that  even  shipment  on  the  buyer's  own  vessel 
with  a  statement  that,  as  to  payment  of  freight,  the  goods 
were  buyer's  property  did  not  show  an  intent  to  pass 
title  to  the  buyer  when  the  bill  of  lading  had  been  taken 
out  in  the  seller's  name.*^ 

82—50  Ark.  20.  fer  the   title   to   the   defendant", 

Edelstone  v.  Schimmel,  233  Mass. 


83 — Accd.,  Zimmern's  Coal  Co. 
V.  L.  &  N.  R.  R.,  6  Ala.  Ap.  475, 
60  So.  598. 


45,  123  N.  E.  333. 

85 — Turner  v.  Trustees,  6  Exch. 
Rep.  543;  EUershaw  v.  Magniac, 
84 — Georgia  Marble  Works  v.  6  Exch.  Rep.  569;  In  Gabarron  v. 
Minor,  Ark.,  193  S.  W.  498;  Bailey  Kreeft,  L.  R.  10  Exch.  274,  the 
V.  H.  R.  R.  R.  Co.,  49  N.  Y.  70;  seller  was  under  contract  to  de- 
Buckeye  Cotton  Oil  Co.  V.  Mathe-  liver  to  the  buyer  the  particular 
son,  89  S.  E.  478;  Bk.  of  Litchfield  goods  shipped,  and  the  vessel  had 
V.  Elliott,  83  Minn.  469,  86  N.  W.  been  chartered  for  the  purpose  of 
454;  "Delivery  of  the  goods  to  the  carrying  them  to  the  buyer.  Never- 
carrier  together  with  the  taking  theless  it  was  held  that  title  did 
of  a  non-negotiable  bill  of  lading  not  pass  to  the  buyer  on  shipment 
in  the  name  of  the  defendant  because  the  bill  of  lading  was 
(buyer)  was  strong  proof  of  in-  taken  in  the  name  of  a  fictitious 
tentlon  by  the  plaintiffs  to  trans-     agent  of  the  seller. 


TRANSFER  OF  TITLE  57 

While  the  majority  of  cases  indicate  clearly  that  the 
seller  in  taking  the  bill  of  lading  in  his  own  name  is  pre- 
sumed to  have  retained  title,  there  are  occasional  deci- 
sions holding  apparently  that  he  retains  a  lien,  a  right 
of  possession,  only.*  Thus  in  Mirabita  v.  Imperial  Otto- 
man Bank^^  the  buyer  was  allowed  to  bring  an  action  in 
damages,  based  on  title  rather  than  contract,  despite  the 
fact  that  the  bill  of  lading  was  in  the  seller's  name  and 
he  had  thereby  retained  a  ''jus  disponendi".  The  court, 
however,  avoided  discussion  of  whether  the  seller's  right 
was  really  title  or  not.  In  effect,  therefore,  it  is  con- 
fusing.*'' 

A  seller's  consignment  to  himself,  without  bill  of  lading, 
makes  the  carrier  bailee  of  the  seller  and  has  been  held 
not  to  indicate  any  intent  to  pass  title.**  And  a  consign- 
ment to  one  who  has  never  agreed  to  buy  can  not,  of 
course,  whatever  be  the  shipper's  intent,  pass  the  title 
to  him,  for  the  reason  that  he  has  never  consented  to 
receive  title  and  the  carrier  is  not  even  by  a  fiction  his 
agent  to  receive  it.*^ 

In  Falk  v.  Fletcher,^"  goods  had  been  delivered  to  a 
carrier  for  transportation  with  expectation  of  taking  a 
bill  of  lading  of  some  sort.  Before  a  bill  could  be  taken 
out  the  master  of  the  vessel  sailed  away  with  the  goods. 
The  court  left  it  to  the  jury  to  determine  what  the  ship- 
per's intention  as  to  title  was. 

Rebuttal  of  Evidence  of  Bill  of  Lading. — The  re- 


buttal of  presumptive  intent  to  pass  title  by  delivery  to  a 

86—3  Exch.  Div.  164.  88— Newcomb      v.      Boston      & 

87-Cf.,  Sawyer  v.  Dean,  114  N.  ^°^^"  ^-  ^^  ^^^  ^^^'^-  ^^^'  ^"^- 
Y.  469;  but  in  Ullman  v.  Wormer  ™^^  ^-  ^''-  ^^^^  ^-  ^-  ^°-  ^^^ 
Mach.  Co.,  210  N.  Y.  41,  where  ^^-  ^-  ^'^^'  ^"^  '^  ^°^^  °°^  ^PP®^^ 
previously  unspecific  goods  were  definitely  that  there  was  even  a 
shipped  to  the  seller's  own  order,  contract  to  sell  in  this  case, 
the  court  said,  "The  title  to  the  89-Allen  v.  Williams,  12  Pick. 

machine  never  vested  in  the  de-      ^^^^^"^    ^^^-    °^"^    ^-    ^^^*^'    ^^ 
fendant   (buyer)."  Tex.  Crim.  107,  122  Am.  St.  734. 

90—34  L.  J.  R.  C.  P.  146. 

*See  Uniform  Sales  Act,  Section  20,  (1),  (2),  (3). 


58  THE  LAW  OF  SALES 

carrier,  which  follows  from  taking  the  bill  of  lading  in  the 
seller 's  own  name,  is  itself  rebuttable  if  other  facts  war- 
rant a  different  conclusion.  It  must  be  borne  in  mind  that 
the  real  intent  of  the  parties  governs  the  passing  of  title. 
It  passes  when  they  so  intend  and  not  until  they  intend. 
The  various  presumptions  which  the  courts  have  estab- 
lished are  not  rules  of  title,  but  presumptions  pure  and 
simple,  which  will  prevail  in  the  absence  of  any  other 
evidence  of  intent,  but  which  will  give  way  at  once  to  any 
evidence  whatever  which  is  sufficient  to  convince  the 
particular  court  or  jury  that  the  real  intent  of  the  par- 
ties was  not  in  accord  with  the  presumption. 

A  good  illustration  is  found  in  the  case  of  Lovell  v. 
Newman  &  Son.®^  K.  &  Co.  having  contracted  to  sell 
cotton  to  a  certain  spinning  company,  forged  bills  of 
lading  made  out  in  their  own  name  for  a  pretended  ship- 
ment of  cotton  conforming  to  the  contract.  These  bills 
of  lading  they  sent  to  the  spinning  company  and  col- 
lected the  agreed  price  of  the  cotton.  Later  they  did 
actually  ship  cotton,  the  genuine  bills  for  which  were  also 
in  the  shippers '  name  and  were  identical  vn.th.  the  forged 
ones.  K.  &  Co.  were  adjudged  bankrupt  and  these  bills 
of  lading  were  found  among  its  papers  by  the  trustee 
in  bankruptcy.  He  brought  suit  against  the  bondsman 
of  the  carrier,  claiming  the  title  to  be  in  him  as  trustee. 
The  court  held  that  taking  the  bills  of  lading  in  the  sell- 
er's own  name  gave  rise  to  a  presumption  that  they 
intended  to  retain  title,  but  that  this  presumption  was 
rebutted  by  the  circumstance  that  the  real  bills  were 
taken  out  in  form  identical  with  the  forged  ones  by 
delivering  which  K.  &  Co.  had  pretended  to  pass  title  to 
the  buyers. 

In  Valley  v.  Montgomery,®''  the  bill  of  lading  had  been 
taken  out  in  the  seller's  name.  Lord  Ellenborough  said 
he  would  have  been  inclined  to  hold  that  title  had  not 

91—188   Fed.    534,    113    C.    C.   A.  92—3  East  585. 

39;  afiirmed  VJ2  Fed.  753. 


TRANSFER  OF  TITLE  59 

passed  to  the  buyer  except  for  the  fact  that  an  invoice 
for  the  goods  had  been  sent  to  the  buyer  stating  that  the 
goods  were  shipped  at  his  risk  and  tliat  the  throwing  of 
the  risk  on  the  buyer  indicated  an  intent  to  pass  the 
title  to  him.  By  way  of  illustrating  the  effect  of  evidence 
on  different  courts  and  demonstrating  that  the  decision 
is  one  of  individual  conclusion,  not  a  rule,  in  Martineau 
V.  Kitching,^^  where  the  question  of  intent  as  to  passing  of 
title  was  in  issue,  there  was  an  express  stipulation  that  the 
risk  of  loss  should  remain  in  the  seller.  The  court  held 
this  to  indicate  an  intent  that  title  should  be  in  the 
buyer  because  if  the  seller  had  been  intended  to  retain 
title  the  risk  would  have  been  in  him  without  stipulation. 

In  Dows  v.  Natl.  Ex.  Bk.^*  the  sending  of  an  invoice  to 
the  buyer,  mthout  any  provision  in  it  as  to  risk,  was  held 
not  to  rebut  the  ''almost  conclusive  presumption"  of 
intent  to  retain  title  raised  by  taking  the  bill  of  lading 
in  the  shipper's  o^\^i  name.^^ 

Subsequent  dealing  mth  the  bill  of  lading  itself  as 
passing  the  title  is  discussed  hereafter. 

Other  Circumstances. — Just  as  the  presumption, 


that  intent  to  pass  title  is  evidenced  by  delivery  of  goods 
to  a  carrier,  may  be  rebutted  by  the  taking  of  a  bill  of 
lading  in  the  shipper's  own  name,  so  it  may  be  rebutted  by 
other  circumstances.  It  would  be  of  no  purpose  to  point 
out  many  of  the  various  circumstances  Avhich  have  been 
held  in  one  case  or  another  to  rebut  such  presumption  of 
intent,  but  for  particular  precedents  which  may  possibly 

93 — L.  R.  7  Q.  B.  436.  actions  on  the  part  of  the  seller 

94-91  U.  S.  618,  630.  "°     indicating.       In    Golightly    v. 

Texas,   49   Tex.   Cr.   Ap.   44,   2   L. 

95 — In  Ogle  v.  Atkinson,  5  Tau-  R.  A.  (n.  s.)  383,  an  oral  stipula- 

ton    759,    it    was    held    that    title  tion  that  buyer  should  assume  no 

passed  on  delivery  to  the  carrier,  risk  of  loss  in  transit  was  held  not 

despite  the  fact  that  the   bill  of  to    rebut    presumption    that    title 

lading  was  taken   in   the   seller's  passed  on  shipment, 
name,  because  of  statements  and 


60  THE  LAW  OF  SALES 

have  persuasive  effect  upon  a  court  reference  must  be 
made  to  the  digests.^^ 

Conflicting  Intents. — The  rule  of  evidence  that  a 


presumption  of  intent  existing  at  the  time  of  certain  acts 
can  not  be  rebutted  by  a  showing  of  subsequent  acts  or 
declarations,  or  other  subsequent  evidence,  prevails  of 
course  in  this  relation.  The  delivery  of  goods  to  a  carrier 
and  the  taking  out  of  a  bill  of  lading,  or  giving  other 
directions  as  to  shipment,  are  all  a  part  of  the  one  trans- 
action of  shipment.  It  is  not  the  deposit  of  goods  in  the 
carrier's  freight  house  that  demonstrates  the  parties' 
intent  as  to  title,  but  the  "shipment"  which  shows  it. 
But  when  the  presumptive  intent  has  been  shoA\Ti  by 
this  shipment,  it  can  not  thereafter  be  rebutted  by  the 
subsequent  acts  of  the  parties,  although,  of  course,  they 
may  if  they  choose  actually  alter  their  prior  intent.®^ 

It  follows  also  that  if  title  has  already  presumptively 
passed  to  a  specific  chattel,  the  way  in  which  the  seller 
deals  with  it  on  shipment  will  not  serve  to  revest  title  in 
him  nor  to  rebut  the  already  existing  presumption. 

Partial  Delivery. — In  cases  where  the  contract  is 


for  the  sale  of  a  quantity  of  unspecified  goods  and  a  part 
of  them  have  been  specified  and  accepted  by  the  buyer  the 
question  sometimes  arises  whether  title  has  passed  to  so 
much  as  has  been  specified.  If  the  contract  is  decided  to 
be  a  "severable"  one,  so  that  title  to  the  various  parts 
and  amounts  of  the  goods  contracted  for  may  be  treated 
separately  from  that  of  the  whole,  the  issue  would  prop- 
erly be  determined  just  as  it  would  be  in  any  contract 

96 — Moakes  v.  Nicholson,  34  L.  A   contrary   dictum   is   found   in 

J.  R.  C.  P.  273 ;    not  rebutted  by  Presley  Fruit  Co.  v.  St.  Louis,  etc. 

bill  "on  account  of  whom  it  may  R.  R.,  130  Minn.  121,  153  N.  W.  115, 

concern"    but    invoice    to    buyer,  to  the  effect  that  seller's  retention 

The    Carlos   F.   Roses,    177   U.    S.  of  a  bill  of  lading  in  the  buyer's 

655,  662.  name  might  show  an  intent  to  re- 

97— Alderman  Bros.  Co.  v.  West-  tain  title, 
inghouse,  etc.,  Co.,  92  Conn.  419. 


TRANSFER  OF  TITLE  61 

for  the  sale  of  the  particular  goods  actually  delivered, 
without  considering-  the  fact  that  they  were  part  of  a 
larger  amount.  But  if  the  contract  be  looked  upon  as  an 
entirety,  a  different  state  of  facts  is  present.  It  is  highly 
probable  that  the  buyer  and  seller  did  not  contemplate 
the  passing  of  tirtle  to  part  only,  but  rather  that  no  real 
ownership  to  any  part  should  pass  until  the  ownership 
of  the  whole  should  be  transferred.  The  authority  on 
this  point  is  extremely  limited.  In  Thompson  v.  Con- 
over,^^  it  was  explicitly  held  that  title  would  pass.  Con- 
over  had  sold  to  Petty  certain  corn,  to  be  shelled  by  the 
seller  and  dehvered.  A  part  of  it  was  so  delivered  and 
accepted,  and  the  rest,  upon  subsequent  delivery,  was 
refused  by  the  buyer.  That  which  had  been  delivered 
was  levied  upon  by  the  sheriff  as  the  property  of  the 
buyer.  Conover  then  rescinded  the  contract  and  brought 
his  action  in  trover.  The  court  held  the  contract  to  be 
entire  and  the  seller  to  have  a  right  to  rescind  for  the 
buyer's  non-performance.  But  it  held  also  that  the 
action  of  trover  could  not  be  maintained  because  the  title 
had  passed  from  Conover  to  the  buyer.®^ 

On  the  other  hand,  it  has  been  intimated,  without  the 
necessity  of  so  holding,  that  title  to  part  delivered  under 
a  contract  for  an  entire  quantity  would  not  pass  until 
the  whole  amount  had  been  appropriated.""  Other  cases, 
without  discussing  whether  title  to  the  part  did  pass  or 
not,  have  held  thai  it  is  in  the  seller  after  rescission  at 
any  rate.^°^  Of  course  the  facts  of  the  case  may  be  such 
as  to  show  that  the  parties  intended  the  risk  of  loss  of  so 
much  as  had  been  appropriated  to  be  upon  the  buyer, 
regardless  of  whether  or  not  title  had  passed  to  him."'^ 

98 — 32  N.  J.  L.  466.  100— Stewart      v.      Henningsen 

99-HolIand   v.    Cincinnati  Co..      P^°*^"^^  ^°-  ^^  ^^^  ^^L  129  Pac. 

97    Ky.    454.    title    held    to    have      ^^^^   ^^^^^  ^-  ^^^^'  ^^^  ^^^-  ^24- 


passed  and  not  to  revert  upon 
rescission,  but  it  was  not  defin- 
itely held  that  the  contract  was 
entire. 


116  Pac.  963. 

101— Pope  V.  Porter,  102  N.  Y. 
366. 

102 — Anderson  v.  Morice,  L.  R. 
10  C.  P.  609. 


62  THE  LAW  OF  SALES 
Dealing  with  a  Bill  of  Lading. — Although  the  fact 


that  by  taking  a  bill  of  lading  in  the  seller's,  name  the 
carrier  is  made  bailee  for  the  seller  raises  a  presumption 
that  title  was  not  intended  to  pass,  this  bill  of  lading  itself 
may  later  be  so  dealt  with  as  to  show  an  intent  to  pass 
title  to  the  goods  represented  by  it  to  the  buyer.  Dealing  "^ 
mth  the  bill  of  lading  has  the  same  effect  that  dealing 
with  the  goods  themselves  would  have.    Therefore  when  -- 
the  seller  indicates  an  intent  to  pass  the  ownership  of 
the  bill  of  lading  to  the  buyer  he  manifests   also   an 
intent  to  pass  title  to  the  goods  represented  by  the  bill 
of  lading.    The  usual  case  is  an  indorsement  of  the  bill  of 
lading  and  its  delivery  to  the  buyer.    The  fundamental 
case  upon  this  point  is  Lickbarrow  v.  Mason,  decided 
in  1793."^    This  case  arose  out  of  a  sale  of  unspecified 
goods  by  Turing  &  Son  to  Freeman.     Pursuant  to  the 
contract,  Turing  shipped  corn  consigned  to  Freeman  and 
took  the  bills  of  lading  in  his  own  name.    Two  of  these 
bills,  which  were  in  quadruplicate,  Turing  indorsed  in 
blank  and  sent  to  Freeman.    The  latter  transferred  them 
to  the  plaintiff  as  security  for  an  obligation.     Freeman 
having  become  insolvent  before  arrival  of  the  goods, 
Turing,  through  the  defendant  as  his  agent,  attempted  to 
retake  possession  as  an  unpaid  seller.     The  Exchequer 
Chamber  held  that  the  title  to  the  goods  remained  in  the 
seller;  that  the  buyer  Freeman,  having  no  title,  could 
convey  nothing  to  the  plaintiff,  even  by  endorsing  to  him 
a  bill  of  lading.     On  review  by  the  House  of  Lords  it 
was  held  thatfby  the  assignment  of  the  bill  of  lading  the 
legal  title  had  passed  to  Freeman  and  from  him  to  the 
plaintiff,  and  that  the  plaintiff  having  an  equity  in  addi- 
tion to  his  legal  title,  the  seller's  merely  equitable  right 
could  not  prevail.)  It  was  further  specifically  held  that 
the  transfer  of  the  bill  of  lading  by  an  indorsement  in 
blank  had  the  same  effect  of  transferring  the  legal  title, 

103—2    T.    R.    63;    1    II.    Black- 
stone  357,  2  Id.  211;   5  T.  R.  683. 


TRANSFER  OF  TITLE  63 

if  so  intended,  as  by  indorsement  to  a  particular  person 
named.  So,  it  is  now  consistently  held  that(transf  er  of  a 
bill  of  lading  has  the  same  effect  as  transfer  of  the  goods 
represented  by  it  would  have.^°*  ) 

This  transfer  of  the  bill  of  lading,  like  the  delivery  of 
goods,  may  be  made  upon  condition.  ( If  it  is  transf'crred 
upon  condition  and  the  seller,  i.  e.,  the  tranferor,  does 
not  intend  title  to  pass  until  the  condition  is  fulfilled,  title 
does  not  pass — as  between  the  parties — until  then."^*) 

Unspecified  Part  of  Specified  Mass. — An  agreement  to 
sell  property  which  is  itself  unidentified,  but  which  is 
described  as  part  of  a  definite  and  specified  larger  mass 
of  goods,  is  a  common  transaction.  The  question  then 
arises  whether  the  buyer  has  any  of  the  privileges  and 
liabilities  of  ownership  in  respect  to  the  mass  before 
some  particular  part  has  been  designated.  It  is  obvious, 
of  course,  that  he  can  not  be  the  o^vner  of  any  physically 
limited  or  separated  part  until  such  particular  part  has 
been  specified.  Even  if  by  the  agreement  he  is  bound  to 
accept,  or  if  he  has  authority  to  select  for  himself  what 
part  he  will  take,  until  such  selection  has  actually  been 
made  he  is  not  the  owner  of  any  particular  part,  but  has 
only  a  legal  right  to  become  the  owner  of  some  particular 
part.  As  we  have  already  pointed  out,  ownership  is  not 
a  mere  idea,  but  is  the  legal  connection  of  certain  ideal 
rights  and  duties  with  some  particular,  definite  thing. 
Until  there  is  a  definite  thing  to  be  the  object  of  owner- 
ship there  is  no  ownership.  And  while  the  thing 
described  as  sold  is  still  an  undetermined  part  of  some- 
thing else,  there  is  no  definite  thing  to  be  o^\^led. 

It  is,  however,  a  legal  concept  that  several  persons  may 
have  certain  rights  and  duties  of  ownership  in  respect  to 
the  same  one  particular  thing.     "When  the  legal  rights 

104— See  post,  p.  219,  221,  for  5  H.  of  L.  116;  Godts  v.  Rose,  25 
full  discussion.  I..  J.  R..  C.  P.  61;  Wait  v.  Baker, 

105 — Shepherd  v.  Harrison,  L.  R.      2  Exch.  Kep.  1. 
•See  Uniform  Sales  Act,  Section  34. 


64  THE  LAW  OF  SALES 

which  go  to  make  up  the  concept  of  ownership  were 
predicated  upon  the  fact  of  physical  possession,  it  is 
true  that  "ownership"  by  more  than  one  person  of  a 
single  chattel  would  have  been  more  or  less  paradoxical. 
Philosophically  it  is  perhaps  demonstrable  that  two  per- 
sons can  not  simultaneously  "possess"  a  single  thing  any 
more  than  two  spaces  can  be  simultaneously  occupied 
by  it.^**^  But  rights  and  obligations  are  no  longer 
founded  on  actual  physical  possession.  The  history  of 
the  change  would  be  out  of  place  in  a  work  of  this  type 
and  it  is  sufficient  to  say  that  several  persons  may  have 
a  co-ownership,  an  "ownership  in  common"  in  a  single 
thing. 

Although  one  who  owns  a  thing  obviously  can  not 
invest  another  with  rights  in  respect  to  a  particular  part 
of  that  thing  until  he  indicates  in  some  way  the  part  to 
which  the  new  rights  shall  apply,  nevertheless  the  owner 
of  a  thing  can  invest  another  with  rights  in  respect  to 
the  entire  thing  without  thereby  necessarily  divesting 
himself  of  all  rights.  So  long  as  we  know  with  what 
rights  and  liabilities  he  has  invested  the  second  person, 
it  is  immaterial  by  what  name  they  be  collectively  called. 
Usually  the  courts  do  speak  of  them  as  rights  of  ' '  owner- 
ship in  common".  The  transaction  is  usually  called  a 
"sale"  and  the  buyer  is  said  to  become  an  o^vner  or 
tenant  in  common.^"''* 

106 — For    a    discussion    of    the  v.  Stowell,  51  N.  Y.  70,  something 
difference  of  ideas  as  to  concur-  more  than  tenancy  in  common, 
rent  possession  and  ownership  of  As  to  the  rights  themselves,  re- 
land  and  of  chattels  see  Pollock  &  gardless  of  their  name  as  owner- 
Maitland,  Vol.  2,  p.  180  ft.  ship,    or    otherwise,    it    has    been 

107 — Loomis  v.  O'Neal,  73  Mich,  held  that  one  in  whom  the  owner 

582;    In   Kimberly  v.   Patchin,   19  has  created  an  interest  in  an  un- 

N.  Y.  330,  the  court  held  that  the  specified  part  of  a  mass  of  grain,  or 

buyer  of  an  undistinguished  num-  other    fungible    goods,  may  main- 

ber  of  bushels  of  a  larger  mass  of  tain  assumpsit  against  the  original 

wheat  acquired  an  ownership,  but  owner.       Loomis     v.     O'Neal,     73 

said  that  it  was  something  more  Mich.  582,  "The  refusal  to  recog- 

than  a  tenancy  in  common;  Lobdell  nize    the    right    of    the    co-tenant 

•See  Uniform  Sales  Act,  Section  6,  (1),  (2),  76,  "Fungible  goods." 


TRANSFER  OP  TITLE 


65 


Intent  of  Parties. — It  thus  appears  that  the  law 

recognizes  a  possibility  that  rights  or  liabilities  such  as 
usually  connote  ownership  may  exist  coincidentally  in 
two  or  more  persons  in  respect  to  a  single  undivided 
mass  of  property.  The  only  question  to  be  solved,  there- 
fore, is  whether  the  sale  of  a  certain  quantity  of  a  larger 
mass  is  intended  by  the  parties  to  transfer  such  an  ** undi- 
vided ownership"  in  the  whole  mass. 

It  does  not  matter  what  the  rights  should  be  called,  the 
question  is  whether  the  parties  have  intended  that  the 
buyer  shall  have  rights  in  respect  to  the  whole  mass 


amounts  to  a  conversion.  The 
tort  may  be  waived,  and  assump- 
sit brought";  or  may  have  an  ac- 
tion against  the  other  for  damages 
for  conversion,  Lobdell  v.  Stowell, 
51  N.  Y.  70;  Kimberly  v.  Patchin, 
19  N.  Y.  330;  or  an  action  of  tro- 
ver, Stall  V.  Wilbur,  77  N.  Y.  158. 
It  has  even  been  held  that  a 
"tenant  in  common"  may  bring  re- 
plevin for  his  own  part,  the  court 
saying,  "It  has  been  quite  gener- 
ally held  that  tenants  in  common 
or  persons  who  are  separate  own- 
ers of  articles  stored  in  mass,  such 
as  corn,  wheat,  coal,  logs,  etc., 
each  article  being  of  like  nature 
and  quality  with  the  others,  may 
have  replevin  for  his  proportion- 
ate part  of  the  intermixed  chat- 
tels if  the  same  is  wrongfully  de- 
tained and  the  action  is  necessary 
for  the  maintenance  of  his  rights, 
subject  to  deductions  for  any  loss 
or  waste  properly  falling  to  his 
share  while  the  property  remained 
in  mass."  Manti  City  Savings 
Bank  v.  Peterson,  33  Utah  209, 
126  Am.  St.  817,  93  Pac.  566;  Piaz- 
zek  V.  White,  23  Kan.  621,  33  Am. 
Rep.  211;  Halsey  v.  Simmons,  85 
Ore.  324,  166  Pac.  944. 


As  recognizing  the  possibility 
of  rights  in  respect  to  one  partic- 
ular thiijg  in  two  persons  simul- 
taneously, see  Gardiner  v.  Suy- 
dam,  7  N.  Y.  357;  Seldomridge  v. 
Bank,  87  Neb.  531,  127  N.  W.  871; 
30  L.  R.  A.  (n.  s.)  337;  Brownfield 
V.  Johnson,  128  Pa.  254,  6  L.  R. 
A.  48,  dictum.  "The  weight  of 
American  authority  supports  the 
proposition  that  when  property 
sold  to  be  taken  out  of  a  specific 
mass  of  uniform  quality,  title  will 
pass  at  once  upon  the  making  of 
the  contract,  if  such  appears  to  be 
the  intent."  Kimberly  v.  Patchin, 
19  N.  Y.  330,  "None  of  (the  deci- 
sions) go  to  the  extent  of  holding 
that  a  man  cannot,  if  he  wishes 
and  intends  so  to  do,  make  a  per- 
fect sale  of  a  quantity  without 
actual  separation,  where  the  mass 
is  ascertained  by  the  contract  and 
all  parts  are  of  the  same  value  and 
undistiuguishable  from  each 
other."  Tobin  v.  Portland  Mills 
Co.,  41  Ore.  265,  depositors  of 
wheat  in  a  warehouse  called  "ten- 
ants in  common  thereof,  having 
such  an  undivided  interest  therein 
as  the  quantity  stored  by  each 
bore  to  the  amount  deposited." 
Bretz  V.  Diehl.  117  Pa.  589. 


66  THE  LAW  OF  SALES 

itself,  as  distinct  from  mere  rights  of  action  against  the 
seller  personally.^^^ 

Presumption  of  Intent. — The  intention  to  create 


rights  to  the  property  itself  need  not  be  expressed.  The 
courts  may  conclude  sucli  to  have  been  the  intention  from 
an  examination  of  the  circumstances.  In  Hurff  v.  Hires^**^ 
it  appeared  that  Hurff  had  bought  from  Heritage  200 
bushels  of  corn  which  was  part  of  a  mass  of  400  or  500 
bushels  belonging  to  Heritage.  Nothing  whatever 
appears  to  have  been  said  in  regard  to  legal  rights  or 
liabilities.  Before  there  was  any  separation  of  the  corn 
sold  from  the  mass,  Hires,  a  sheriff,  levied  upon  the 
whole  mass  as  being  the  property  of  Heritage.  Despite 
the  levy  Heritage  separated  200  bushels  from  the  mass 
and  delivered  it  to  Hurff,  and  Hires  brought  an  action 
of  trover.  The  lower  court  decided  in  favor  of  the  sheriff 
"on  the  theory  that  though  the  purchaser  bought  the 
corn  and  paid  the  price,  the  title  did  not  pass  to  him, 
because  the  quantity  sold  was  not  separated  from  the 
original  bulk  until  after  levy,  and  that  therefore  the 
whole  still  remained  liable  to  seizure  as  the  property  of 
the  vendor. ' '  This  holding  was  reversed  by  the  Supreme 
Court,  which  said,  ''It  is  the  general  rule  that  the  prop- 
erty in  goods  and  chattels  passes  under  the  contract  of 
sale  according  to  the  intention  of  the  parties.  The  diffi- 
culty in  the  application  of  this  rule  is  in  determining 
under  what  circumstances  the  parties  shall  be  considered 
as  having  evinced  an  intention  that  property  in  the  sub- 
ject-matter of  sale  should  pass  from  the  vendor  to  the 

108 — It  must  be  borne  in  mind  mass  itself  is  known.  Many  cases 
that  If  the  sale  is  merely  of  cer-  turn  in  reality  upon  lack  of  iden 
tain  property,  described,  but  not  tity  of  even  a  larger  mass  >om 
identified  even  to  the  extent  of  which  property  sold  is  to  be  taken, 
being  part  of  a  larger  definite  although  they  appear  on  casual 
mass,  no  title,  even  an  undivided  reading  to  hold  that  title  in  corn- 
one,  can  pass.  It  is  impossible  to  mon  could  not  pass, 
conceive  of  even  an  ownership  in  109 — 11  Vroom  (N.  J.  L.)  581,29 
common    in    a    mass    unless    the  Am.  Rep.  282. 


TRANSFER  OF  TITLE  67 

purchaser."  After  pointing  out  that  intention  to  pass 
title  is  found  readily  or  reluctantly  according  to  the 
degree  of  protection  thought  due  the  seller,  the  court 
continued,  ''The  tendency  of  modern  decisions  is  to  give 
effect  to  contracts  of  sale  according  to  the  intention  of 
the  parties  to  a  greater  extent  than  is  found  in  the,  older 
cases,  and  to  engraft  upon  the  rule  that  property  passes 
by  the  contract  of  sale,  if  such  be  the  intention,  fewer 
exceptions,  and  those  only  which  are  founded  upon  sub- 
stantial considerations  affecting  the  interest  of  parties." 
The  court  held  accordingly  that  there  was  no  legal  reason 
why  an  ownership  of  the  corn  itself  could  not  have  passed 
to  the  buyer  even  before  separation  of  the  mass  and  that 
the  question  as  to  whether  the  parties  so  intended  should 
have  been  left  to  the  jury. 

In  Kimberly  v.  Patchin,  ^^^  an  intent  to  pass  an  actual 
ownership  by  the  sale  of  6,000  bushels  of  grain  out  of  a 
mass  of  6,240  was  deduced  by  the  court — mthout  refer- 
ence to  a  jury — from  the  fact  that  the  owner  not  only 
gave  a  bill  of  sale  for  6,000  bushels  but  thereafter  stated 
in  writing  that  he  held  6,000  bushels  of  grain  as  bailee  of 
the  buyer. 

"Where  there  are  no  particularly  indicative  facts, 
except  the  fact  that  the  sale  is  of  part  of  a  mass,  the 
courts  are  in  disagreement  as  to  what  conclusion  of  intent 
they  will  draw.  In  England  it  is  the  consistent  policy  to 
presume  that  there  was  no  intent  to  create  any  OA\Tier- 
ship  in  the  undivided  mass.  An  early  case,  much  referred 
to  in  American  decisions,^^^  did  hold  that  a  sale  of  10  tons 
of  oil,  to  be  taken  from  a  tank  containing  40  tons,  gave 
the  buyer  a  right  of  action  in  trover  against  the  seller, 
despite  the  fact  that  the  part  sold  had  never  been  in  any 
way  distinguished  from  the  whole.  This  case,  however, 
has  not  been  followed  in  England."^ 

110—19  N.  Y.  330.  530  dictum;  Aldridge  v.  Johnson, 

111— Whitehouse    v.    Frost,  12       7   El.    &   Bl.   885    (sale   of  grain); 

East  614.  Knights  v.  Whiffen,  L.  R.  5  Q.  B. 

112— Gillett  V.  HiU,  2  C.  &  M.      660    (sale  of  graiu);    Wallace  v. 


68  THE  LAW  OF  SALES 
Estoppel. — But,  nevertheless,  when  the  action  is 


by  the  buyer  of  an  unseparated  part  of  a  mass  against 
the  possessor  of  the  whole,  even  the  English  courts  show 
a  readiness  to  allow  recovery  on  the  ground  that  the 
possessor  has  done  something,  however  slight  it  may  be, 
to  estop  himself  from  denying  that  the  goods  sold  have 
actually  been  separated.^^^ 

Fungible  Goods. — In  America  a  distinction  is  made 


between  sales  of  part  of  ''fungible"  goods  and  those 
which  are  not  fungible.  By  ''fungible"  or  "homoge- 
neous" is  meant  goods  which  are  generally  considered 
in  terms  of  measurement  rather  than  of  individual  units. 
Grain,  for  instance,  is  thought  of  in  bushels  rather  than 
in  numbers  of  kernels,  and  is  considered  as  fungible. 
Hams  and  automobiles,  however,  are  sold  by  numbers 
of  individual  units,  not  by  measures-full,  and  bricks  by 
numbers  of  bricks,  not  by  tons.  Such  masses  are  not 
fungible.  In  case  of  sale  of  part  of  a  mass  of  fungible 
goods  there  is,  in  America,  a  tendency  to  presume  that 
an  undivided  ownership  was  intended  to  pass."* 

Breeds,  15  East  522,  12  Rev.  R.  114— Gushing  v.  Breed,  14  Allen 
423,  50  tons  oil  out  of  90  tons  in  (Mass.)  376,  92  Am.  Dec.  777; 
various  casks — distinguished  from  Chapman  v.  Shepard,  39  Conn.  413, 
Whitehouse  v.  Frost  on  ground  sacks  of  meal;  Welch  v.  Spies,  103 
that  it  was  custom  for  seller  to  Iowa  389;  Cloke  v.  Shafroth,  137 
measure  water  and  "foot-dirt"  and  111.  393;  McReynolds  v.  People,  230 
fill  up  casks;  White  v.  Wilks,  5  111.  623  dictum;  Mchts.  Bk.  v. 
Taunt  176,  14  Rev.  R.  735,  20  tons  Hibbard,  48  Mich.  118;  Waldron  v. 
oil  out  of  "vendor's  stock"  which  Chase,  37  Me.  414;  Kaufman  v. 
was  in  various  casks,  notes  that  Schilling,  58  Mo.  218;  Halsey  v. 
oil  was  not  in  single  container;  Simmonds,  85  Ore.  324,  166  Pac. 
Bush  V.  Davis,  2  M.  &  S.  397,  15  944;  Seldomridge  v.  Bank,  87  Neb. 
Rev.  R.  288,  10  out  of  18  tons  of  531,  127  N.  W.  871,  30  L.  R.  A. 
flax  in  mats;  Shepley  v.  Davis,  5  (n.  s.)  337;  Brownfield  v.  John- 
Taunt  617,  15  Rev.  R.  598,  10  out  son,  128  Pa.  254,  6L.  R.  A.  48;  Rus- 
of  30  tons  of  hemp.  sell  v.  Carrington,  42  N.  Y.  118; 
113-Gillett  V.  Hill,  2  C.  &  M.  Cassinelli  v.  Humphrey  Supply 
530;  Aldridge  v.  Johnson,  7  El.  &  C«-  ^^  ^^^^  ^^^'  ^^^  ^^^^  ^23.  ex- 
Bl.  885:  Knights  v.  Whiffen,  L.  R.  ^^""^^^  ^^  ^^'®  "^  P^""*  "^  ^  '^^^®^ 
BOB    660  mass  of  hay;  The  Iron  Cliff  Co.  v. 

Buhl,  42  Mich.  86,  iron  ore. 


TRANSFER  OF  TITLE  69 

Some  cases,  however,  are  in  fiat  conflict  with  this  pre- 
sumption of  intent  and  hold  that  title  does  not  pass  unless 
the  intent  is  clearly  evinced.^^^  A  distinction  must  be 
noted  between  these  confiicting  cases  and  those  in  which 
some  other  rule  of  presumption  than  that  referring 
to  separation  prevents  a  holding  that  title  passed,  as 
for  instance  the  rule  that  where  the  seller  is  to  put  the 
goods  in  a  deliverable  condition  title  is  presumed  not 
to  have  passed  until  that  is  done.^^^  There  is  also  a  pos- 
sibility of  confusion  in  the  fact  already  referred  to,  that 
some  cases  appear  to  hold  that  title  to  part  of  a  mass 
will  not  pass  when,  in  fact,  in  the  particular  case,  there 
is  not  even  a  mass  identified  from  which  the  property 
described  is  to  be  taken.^" 

Non-Fungible    Goods. — When    the    mass    is    not 


"fungible",  even  though  all  the  individual  components 
of  it  may  be  of  probably  equal  value,  the  judicial  custom 
is  to  hold  that  a  mere  sale  of  a  part  thereof  pre- 
sumptively indicates  no  intent  to  pass  title  in  the  mass 
itself."^ 

But  it  is  not  impossible  that  parties  should  create  coin- 
cident rights  of  0A\'nership  in  the  same  mass,  even  though 
it  be  not  fungible,  and  when  the  circumstances  are  such 
as  clearly  to  demonstrate  that  they  did  so  intend,  even 

115 — Wood  &  Co.  V.  Roach,   52  defendant  had   a   seller's   lien   on 

111.  Ap.  388,  the  same  result  might  the  property. 

have  been  reached  upon  the  Illi-  116— Backhaus  v.  Buells,  43  Ore. 

nois  doctrine  that  change  of  pos-  ^^^'  ^^  ^ie  v.  Crosby,  43  Ore.  612; 

.             e    1.  Bailey  v.  Long,  24  Kan.  90. 

session    is    necessary    to    perfect  ^^J  ^^  „    *'    „    , .  ,    "" 

.     ^       ,              ^  177— Kellog  V.  Frolich,  139  Mich, 

title   as   against  subsequent   pur-  ... 

Chasers;  Mercer  Natl.  Bk.  v.  Haw-  n8_Gardner   v.   Suydam,   7   N. 

kins  &  Co..  104  Ky.  171;  Lawry  v.  ^   357^  ^^^^   ^^  A^^^..  commercial 

Ellis,  85  Me.  500,  hay  from  a  mow;  ^atl.  Bk.  v.  Gillette,  90  Ind.  268; 

Jeraulds  v.  Brown,  64  N.  H.  006;  Fordice  v.  Gibson,  129  Ind.  7;  Gro- 

Keeler  v.  Goodwin,  111  Mass.  490,  cer  Co.   v.   Clements,   69   Mo.   Ap. 

decision   also    put   on   the    ground  446;   Ferguson  v.  Northern  Bk.  of 

that  plaintiff's  action   for  conver-  Ky.,   14  Bush.    (Ky.)    555,  29  Am. 

sion  was  precluded  by  fact  that  Dec.  418,  hams. 


70  THE  LAW  OF  SALES 

without  express  statement,  the  courts  will  hold  that  such 
an  ownership  in  common  is  created."® 

Specified  Part  of  Larger  Mass. — Attention  may  be 
called  to  the  distinction  between  the  need  of  separation 
from  a  larger  mass  for  purpose  of  identification  and  sep- 
aration of  already  identified  goods  merely  for  the  sake  of 
physical  possession.  In  the  latter  case  there  is  of  course 
no  reason,  from  the  point  of  view  of  identification,  why 
title  should  not  pass.  Thus  in  the  case  of  a  sale  of  a 
stated  number  of  tons  of  hay  to  be  taken  in  a  layer  from 
the  top  of  a  hay-mow,  there  is  nothing  indefinite  about 
the  identification  of  the  property  sold.  It  is  clearly 
identified  as  the  top  layer  of  the  mow  to  a  depth  of  the 
number  of  feet  or  inches  required  to  weigh  the  stated 
amount.  Other  things,  such  as  an  undertaking  of  the 
seller  to  bale  it,  may  raise  a  presumption  that  title  was 
not  intended  to  pass,  but  the  identification  is  sufficient  to 
constitute  it  a  sale  of  specific  property.  So  also,  if  one 
having  on  hand  a  quantity  of  barrels  of  mackerel  sells 
* '  all  he  has ' '  of  grades  ' '  numbers  1 ,  2  and  3 ' ',  the  descrip- 
tion is  sufficiently  definite  to  allow  the  usual  presumption 
of  intent  as  to  the  passing  of  title  of  specific  property 
to  apply.^^" 

Goods  Not  in  Existence. — Parties  sometimes  contract 
for  the  sale  of  goods  which  may  be  specified,  or  merely 
described,  but  which  the  seller  does  not  then  o^vn,  or 
which  are  not  even  in  existence.  In  such  case  it  is  quite 
obvious  that  no  title  can  pass  at  the  time  the  contract  is 

119 — Hall  V.  Boston,  etc.,  R.  R.  Cassinelli    v.    Humphrey    Supply 

Co.,  14  Allen  (Mass.)  439,  92  Am.  Co.,  43  Nev.  208,  183  Pac.  523,  hay. 

Dec.  783.  50  bbls.  of  flour  out  of  a  120-Ropes    v.    Lane,    9    Allen 

(Mass.)  502;  Lamprey  v.  Sargent, 

larger  number;  Kingman  v.  Holm-  ^g  j^  ^  241,  sale  of  all  the  "hard" 

quiet,  36  Kan.  735;   Mertz  v.  Put-  bricks  from  a  certain  mass  of  hard 

nam,   117   Ind.   392;    MacKellar  v.  and   soft  ones;    Dunkart   v.   Rine- 

Pillsbury,  48  Minn.  396;    State  v.  heart,  89  N.  C.  354,  all  of  seller's 

Wharton,    117   Wis.    558,   lumber;  trees  of  a  stated  girth. 


TRANSFER  OF  TITLE  71 

entered  into.  If  the  seller  docs  not  own  the  goods,  or 
if  there  are  no  goods  in  existence  to  be  owned,  he  has 
nothing  in  the  way  of  a  title — there  are  no  rights  of 
ownership  belonging  to  him — to  be  transferred.  The 
transfer,  if  it  is  to  be  recognized  at  all  by  the  courts, 
can  only  occur  at  a  time  after  the  seller  has  acquired 
an  ownership  by  bringing  the  goods  into  existence,  or 
otherwise. ^^^ 

The  same  logic  applies  in  the  case  where  something 
that  had  been  in  existence  has  gone  out  of  objective  exist- 
ence at  the  time  the  agreement  is  made.  There  being 
nothing  in  existence  for  ownership  to  apply  to,  there  is 
no  ownership.  If,  for  instance,  one  person  sells  to 
another  something  which  has  passed  out  of  existence, 
the  buyer  is  allowed  to  recover  his  money  on  the  ground 
that  he  received  nothing  from  the  seller.^^^* 

Contracts  to  Sell. — Such  an  agreement,  however,  is 


not  wholly  void.  Persons  can  enter  into  an  agreement  to 
transfer  ownership  of  anything  which  is  capable  of  being 
described.  If  such  an  agreement  conforms  to  the  legal 
requisites  of  contracts  generally,  it  will  not  be  void 
merely  because  the  person  agreeing  to  sell  does  not  in 
fact  own  the  thing  described,  or  because  the  thing  is  not 
even  in  existence.    Such  a  contract  is  valid  and  the  par- 

121 — Low  V.  Pew,  108  Mass.  347;  nient.    Sheriffs  or  other  designat- 

Gibson   v.    Pelkie,   37    Mich.    380;  ed  court  officers,  in  making  sale 

Emerson  v.  European   etc.   R.   R.  of  property  of  judgment  creditors, 

Co.,  67  Me.  387,  24  Am.  Rep.  39;  if  they  act  in  accord  with  law,  can 

Taylor    v.    Barton-Child    Co.,    228  transfer      ownership      from      the 

Mass.  126,  117  N.  E.  43.  judgment  debtor  to  the  purchaser, 

122 — Martin  v.  McCormick,  8  although  they  themselves  have  no 
N.  Y.  331;  Allen  v.  Hammond,  11  title.  As  a  matter  of  fact,  how- 
Peters  (U.  S.)  63;  Gibson  V.  Pelkie,  ever,  such  officers  act  as  agents 
37  Mich.  380.  of  the  real  owner  and,  hence,  are 

There  is  an  apparent  exception  not  really  within  the  rule. 

to  the  rule,  that  one  who  has  no  Persons  acting  in  the  capacity 

title  himself  can  not  give  one,  in  of    agent    for   an    owner    can,    of 

the  case  of  sales  by  order  of  court  course,     make     legally     effective 

or   in    pursuance    of   legal    enact-  transfers  of  his  ownership. 

*See  Uniform  Sales  Act,  Section  7,  (1),  (2). 


72  THE  LAW  OF  SALES 

ties  are  liable  for  its  breach  as  in  any  other  contract. 
Contracts  of  sale  of  wheat,  as  made  on  the  various 
exchanges,  often  before  the  wheat  described  is  grown, 
and  sales  of  cotton  not  yet  ready  for  the  picking,  are 
very  frequent  instances  of  contracts  to  pass  title  to 
something  not  even  in  existence  at  the  time.  These  con- 
tracts are  universally  upheld  as  valid.^^'  Even  if  the 
agreement  is  in  form  a  present  transfer,  rather  than  a 
contract  to  transfer  title  in  the  future,  the  courts  mil 
nevertheless  give  it  effect  as  a  contract  to  transfer  when 
possible.^^** 

Acquisition  of  Goods. — The  question  then  arises, 


what  is  necessary  to  accomplish  the  transfer  of  title  when 
the  seller  does  become  owner  and,  hence,  able  to  pass  it? 
If  it  is  clear  that  the  parties  had  in  mind  that  it  should 
pass  the  moment  the  seller  himself  acquired  it,  there 
seems  to  be  no  reason  why  that  intent  should  not  be  given 
legal  effect.  There  is  very  little  authority  on  this  par- 
ticular point.  There  is  plenty  of  authority  that  it  does 
not  in  fact  pass  coincidently  with  the  seller's  becoming 
able  to  pass  it.  But  this  practically  all  turns  on  the  as- 
sumption that  the  parties  did  not  intend  it  to  pass  then. 
It  does  not  settle  the  question  whether  it  could  pass  then 
if  they  clearly  so  intended.  The  case  of  Low  v.  Pew^*^  is 
treated  by  commentators  as  authority  for  the  proposition 
that  title  can  not  pass  by  virtue  of  the  seller's  mere  ac- 
quisition of  it,  even  if  the  parties  so  desire.  In  that  case 
the  facts  were  that  the  parties  had  entered  into  a  contract 
reading,  ''We,  John  Low  &  Son,  hereby  sell,  assign  and 
set  over  unto  Alfred  Low  &  Co.  all  the  halibut  that  may 

123— Hamil  v.  Flowers,  184  Ala.  hurst,  127  Ga.  298;   Forsythe  Mfg. 

301,  63  So.  994;  Robinson  v.  Hirsch-  Co.  v.  Castlen,  112  Ga.  199. 

felder,  59  Ala.  503;  Baker  v.  Leh-  124— Bates   v.    Smith,    83    Mich, 

man,  Weil  &  Co.;  186  Ala.  493,  65  347;  Low  v.  Pew,  108  Mass.  347. 

So.  321 ;  Wright  v.  Vaughn,  137  Ga.  125-IO8  Mass.  347. 
52,   72S.  E.   412;    Watson  v.  Hazel- 

•8ee  Uniform  Sales  Act,  Section  5,  (1),  (2),  (3),  76,  "Future  goods". 


TRANSFER  OF  TITLE  73 

be  caught  by  the  master  and  crew  of  the  schooner  Flor- 
ence Reed,  on  the  voyage  upon  which  she  is  about  to  pro- 
ceed *  *  *  at  the  rate  of  five  cents  and  a  quarter  per 
pound  for  flitchod  halibut,  to  be  delivered  to  said  Alfred 
Low  &  Co.  as  soon  as  said  schooner  arrived  *  *  *." 
The  buyer  paid  $1,500  on  account.  Before  the  vessol  got 
back  from  her  voyage  the  sellers  had  become  bankrupt 
and  their  assignee  took  possession  of  the  schooner's  cargo 
when  she  did  arrive.  A  large  part  of  her  cargo,  however, 
must  have  been  caught  before  the  bankruptcy.  The  buy- 
ers brought  an  action  of  replevin  on  the  ground  that  title 
was  in  them.  The  court  said  that  title  could  not  have 
passed  when  the  contract  was  entered  into  because  there 
was  then  no  title  existing,  and  that  if  the  contract  were 
to  be  valid  at  all  it  must  be  considered  as  an  agreement 
to  pass  title  at  a  later  date.  The  court  then  held  simply 
that  title  had  not  passed  to  the  buyers.  As  it  seems  a 
fair  presumption  from  the  form  of  the  contract  that  the 
parties  intended  to  pass  title  as  soon  as  it  should  be  pos- 
sible, the  interpretation  of  the  decision  is  that  such  in- 
tention mil  not  be  given  effect  by  the  courts.  It  is  often 
said  that  there  must  be  a  fresh  demonstration  of  intent 
to  pass  title  after  the  seller  has  become  able,  by  acquisi- 
tion, or  manufacturer,  to  pass  it.^^^ 

126 — In  Mucklow  v.  Mangles,  1  held,  had  not  passed.  "A  trades- 
Taunt.  518,  however,  is  given  a  man",  said  the  court,  "often  fin- 
very  practical  reason  which  indi-  ishes  goods,  which  he  is  making 
Gates  that  the  rule  is  based  on  in  pursuance  of  an  order  given  by 
the  seller's  probable  lack  of  intent  one  person,  and  sells  them  to  an- 
te pass  title  by  merely  manufac-  other.  If  the  first  customer  has 
turing  goods  according  to  the  con-  other  goods  made  for  him  within 
tract.  In  this  case  the  seller  had  the  stipulated  time,  he  has  no 
practically  completed  a  boat  right  to  complain;  he  could  not 
which  accorded  with  the  specifica-  bring  trover  against  the  purchaser 
tions  of  his  contract  of  sale,  had  for  the  goods  so  sold.  The  paint- 
received  money  from  the  buyer  ing  of  the  name  on  the  stern  in 
on  account  of  the  work  and  had  this  case  makes  no  difference." 
even  gone  so  far  as  to  paint  the  Inasmuch  as,  in  this  particular 
buyer's  name  upon  the  boat.  case,  the  seller,  who  had  become  a 
Nevertheless  the  title,  so  the  court  bankrupt,  could  not  have  built  an- 


74 


THE  LAW  OF  SALES 


But,  at  any  rate,  whether  it  be  because  title  can  not  be 
passed  by  the  seller's  mere  acquisition  of  it,  even  though 
the  parties  so  intend,  or  because  it  will  not  be  assumed 
that  the  parties  did  so  intend,  the  overwhelming  weight 
of  authority  is  that  title  does  not  pass  merely  as  a  result 
of  the  seller's  acquisition  of  the  property.  The  reason 
is  not  at  all  clear,  but  the  rule  is  settled."'' 


other  boat  lor  the  buyer,  the  rea- 
soning seems  to  be  a  statement  of 
general  principle. 

The  whole  matter  of  reason  is 
complicated  by  the  fact  that  as 
'between  the  parties  themselves, 
the  legal  result  of  the  agreement 
is  sometimes  the  same  as  though 
title  had  passed  upon  mere  manu- 
facture or  acquisition.  The  rights 
which  the  buyer  acquires,  as  be- 
tween him  and  the  seller,  are  the 
same  as  those  of  legal  ownership, 
but  the  courts  say  the  buyer  has 
those  rights  not  because  he  is 
really  owner  in  the  eyes  of  the 
law,  but  because  the  seller,  who  is 
still  the  legal  owner,  will  not  be 
permitted  to  deny  or  object  to  the 
buyer's  pretense  of  ownership. 
Thus  in  Littlefield  v.  Perry,  21 
Wall.  (U.  S.)  205,  226,  it  appeared 
that  Littlefield  had  transferred  to 
Perry  the  ownership  of  the  patent 
monopoly  of  a  certain  invention 
together  with  all  the  "improve- 
ments" which  he  should  make  in 
respect  to  the  invention.  The  title 
to  a  monopoly  of  these  improve- 
ments could  not  pass  at  time  of 
the  agreement  because  they  were 
not  in  existence.  Later  Littlefield 
did  make  "improvements"  and  be- 
gan using  them  himself.  Perry 
♦  sued  him,  for  infringement,  on  the 
allegation  that  he,  Perry,  owned 
the  monopoly  of  them.  Littlefield 
defended  on  the  ground  that  Perry 
was     not     owner     and     therefore 


could  not  sue  as  such.  The  court 
admitted  that  the  legal  title  was 
still  in  Littlefield  but  allowed  the 
suit  to  continue  nevertheless,  say- 
ing, "Littlefield  took  the  legal  title 
in  trust  for  them  (Perry)  and 
should  convey.  Courts  of  equity 
in  proper  cases  consider  that  as 
done  which  should  be.  If  there 
exists  an  obligation  to  convey  at 
once,  such  courts  will  sometimes 
proceed  as  if  it  had  actually  been 
made."  This  case,  like  Low  v.  Pew, 
indicates  that  although  the  parties 
really  intended  that  title  should 
pass  on  its  acquisition  by  the 
seller,  yet  it  could  not  legally  do 
so.  Curran  v.  Burdsall,  20  Fed. 
835;  Rowley  v.  Bigelow,  12  Pick. 
(Mass.)  307;  Clark  v.  Slaughter, 
34  Miss.  65;  Hickman  v.  Dill,  39 
Mo.  Ap.  246;  Sherman  v.  Cham- 
plain  Transportation  Co.,  31  Vt. 
162;  Harvey  v.  Harvey,  13  R.  L 
598;  Thrall  v.  Hill,  110  Mass.  328. 

Even  this  right  of  the  buyer, 
through  estoppel  of  the  seller  to 
deny  it,  does  not  exist  if  the  seller 
has  not  even  by  implication  war- 
ranted his  title. 

127 — In  Wheeler's  Exrs.  v. 
Wheeler,  59  Ky.  474,  74  Am.  Dec. 
421,  the  plaintiff,  who  was  a  son 
of  the  deceased  testator,  sought  to 
compel  his  father's  executors  to 
distribute  to  him  the  property  to 
which  he  was  entitled  by  the  will. 
The  Executors  answered  that  it 
was   claimed  by   one  X  who  had 


TRANSFER  OF  TITLE 


75 


Manufacture. — Neither,  for  one  reason  or  another, 

will  title  be  held  to  have  passed  because  of  mere  manufac- 
ture of  goods  according  to  the  contract  by  the  seller."' 


bought  it  from  young  Wheeler  be- 
fore the  father's  death,  though 
after  the  will  had  been  made.  The 
plaintiff  did  not  deny  that  he  had 
made  an  agreement  whereby  he 
had  "sold  all  my  individual  inter- 
est of  all  the  personal  property 
now  in  the  possession  of  my  said 
father."  The  court,  however,  held 
that  nothing  could  be  sold  which 
the  seller  did  not  own  and  the 
buyer  in  this  case  had  acquired 
no  title  to  anything  by  his  pur- 
chase. 

Again,  in  Welter  v.  Hill,  65 
Minn.  273,  it  appeared  that  X  had 
made  what  purported  to  be  a  pres- 
ent sale  to  plaintiff  of  flax  which 
X  expected  to  grow  upon  a  partic- 
ular field,  but  for  which  the  seed 
had  not  even  been  sown  at  the 
time.  When  the  crop  had  been 
raised  as  agreed,  it  was  seized  by 
a  creditor  of  the  seller,  X.  The 
plaintiff,  as  buyer,  claimed  title 
in  himself  but  the  court  rejected 
the  contention,  saying,  "When  did 
the  title  to  the  property  pass?  It 
did  not  pass  when  the  bill  of  sale 
was  made,  because  it  was  not  then 
in  existence."  As  nothing  subse- 
quent had  been  done  to  pass  it,  it 
had  not  passed  when  the  creditor's 
levy  was  made. 

McCall  V.  Hampton,  98  Ky.  166, 
56  Am.  St.  335;  Elliott  v.  Leslie, 
124  Ky.  553,  124  Am.  St.  418;  Skip- 
per V.  Stokes,  42  Ala.  255,  94  Am. 
Dec.  646;  Herbert  v.  Bronson,  125 
Mass.  475  (future  wages) ;  Farm- 
er's National  Bk.  v.  Coyner,  44 
Ind.  Ap.  335  dictum;  Gile  v.  La 
Salle,  89  Ore.  107,  171  Pac.  741. 

In    Wheeler   v.    Becker,    68   la. 


723,  28  N.  W.  40,  however,  a  mort- 
gagee of  property  not  in  existence 
at  the  time  was  allowed  to  bring 
an  action  of  replevin  against  at- 
taching creditors,  on  the  ground 
that  the  mortgage  took  effect 
when  the  property  came  into  the 
seller's  ownership.  Accord,  Morris 
v.  Hix,  74  la.  526,  38  N.  W.  395; 
approved,  though  not  in  point,  Mc- 
Master  v.  Emerson,  109  la.  284,  80 
N.  W.  389;  In  Maskelinski  v.  Wazi- 
nenski,  20  N.  Y.  Supp.  533,  the 
buyer  of  property  not  owned  by 
the  seller  was  allowed  to  set  up 
title  to  the  property  as  against 
the  seller,  when  the  latter  did  ac- 
quire it,  without  any  other  pre- 
tense of  title's  having  been  trans- 
ferred. This  was  put  upon  the 
ground  that  title  had  passed,  or 
at  any  rate  the  seller  had  waived 
his  right  to  deny  it. 

128— Fordice  v.  Gibson,  129  Ind. 
7,  "No  title  passes  until  the  thing 
is  completely  done  and  notice  giv- 
en to  the  vendee,  or  some  act  done 
by  the  vendor  designating  it  as 
the  article  sold,  either  by  setting 
it  apart,  marking  it  or  some  other 
similar  act."  Robbins  v.  Chipman, 
1  Utah  335  dictum;  Heiser  v. 
Mears,  120  N.  C.  443  dictum;  Up- 
dike V.  Henry,  14  111.  378;  V/est 
Jersey  R.  R.  Co.  v.  Trenton  Car 
Works,  32  N.  J.  L.  517,  even 
though  payment  be  made  in  ad- 
vance; Edwards  v.  Elliott,  36  N.  J. 
L.  449,  payment  for  vessel  in  in- 
stallments; First  Natl.  Bk.  of  Mar- 
quette v.  Crowley,  24  Mich.  492; 
Commercial  Fire  Ins.  Co.  v.  Capi- 
tal City  Ins.  Co.,  81  Ala.  320,  60 
Am.  Rep.  162;  Rev.  Cutter  #2,  Fed. 


76  THE  LAW  OF  SALES 

When  the  goods  contracted  to  be  sold  are  the  entire 
output  of  a  factory  it  does  seem  that  their  manufacture 
indicates  an  intent  to  pass  the  title  to  them  under  the  con- 
tract more  certainly  than  in  cases  where  the  manufacturer 
could  dispose  of  the  particular  thing  manufactured  and 
then  make  another  one  to  satisfy  his  contract  with  the 
buyer.  In  Williams  v.  Chapman/^®  the  seller  had  con- 
tracted to  sell  the  entire  output  of  his  mill  for  a  certain 
time  and  the  court  held,  without  any  discussion  of  the 
matter,  that  title  passed  to  the  goods  produced  during 
that  time  as  soon  as  they  were  completed.  On  the  other 
hand,  in  Gabarron  v.  Kreeft,^^**  the  seller  had  contracted 
to  sell  all  the  ore  produced  by  a  certain  mine.  Payment 
had  been  made  in  advance  for  the  particular  cargo  of  ore 
in  question.  The  court  held,  again  without  discussion,  that 
the  title  did  not  pass  when  the  ore  was  produced.  This 
very  conflict,  however,  indicates  that  in  such  cases  at 
least  the  title  can  pass  on  acquisition,  or  manufacture, 
if  the  parties  do  in  fact  so  intend. 

Payment  During  Course  of  Manufacture. — Another 


field  of  conflict  is  the  question  whether,  when  goods  to 
be  manufactured  are  to  be  paid  for  in  instalments,  such 
payment  effectuates  a  passing  of  title  to  so  much  of  the 
goods,  or  of  the  particular  chattel,  as  has  been  manu- 
factured at  the  time.  A  much  cited  authority  on  this 
point  is  Woods  v.  Russell.^^^  In  this  case  it  appeared  that 
one  Paton  had  contracted  to  build  a  ship  for  defendant, 
who  was  to  pay  in  instalments  at  certain  points  of 
progress.  After  three  payments  had  been  made  and 
before  the  ship  was  finished  a  question  of  title  arose. 
There  was  very  clear  evidence,  other  than  the  mere  pay- 
ments, that  the  builder  had  intended  to  pass  title  to  so 
much  as  was  done  at  the  time  and  the  court  accordingly 

Cas.  JJ111714;  Gabarron  v.  Kreeft,  129—118  N.  C.  943. 

L.  R.  10  Exch.  274,  all  ore  to  be  130 L.  R.  10  Exch.  274. 

produced     during     certain     time;  ^^^_^  ^^^^    ^  ^,^   9^2. 
Haynes  v.  Quay,  134  Mich.  229. 


TRANSFER  OF  TITLE  77 

held  that  title  had  passed.  But  the  court  said  also,  in 
regard  to  the  payments,  "The  payment  of  these  instal- 
ments appears  to  us  to  appropriate  specihcally  to  the 
defendant  the  very  ship  in  progress,  and  to  vest  in  the 
defendant  a  property  in  that  ship,  and  that,  as  between 
him  and  the  builder,  he  is  entitled  to  insist  upon  the 
completion  of  that  very  ship,  and  that  the  builder  is  not 
entitled  to  require  him  to  accept  any  other." 

The  holding  that  title  to  so  much  as  is  done  passes  as 
it  comes  into  existence,  and,  consequently,  that  title  to 
the  goods  is  in  the  buyer  at  the  time  of  completion  is 
nevertheless  only  a  legal  presumption  from  the  circum- 
stances. The  fact  that  title  is  thus  held  to  have  passed 
when  work  is  paid  for  m  instalments  and  not  to  have 
passed  in  cases  where  there  is  no  partial  payment,  is 
not  due  to  any  peculiar  legal  effect  of  part  payment,  but 
to  the  belief  of  some  courts,  particularly  those  of  Eng- 
land, that  paym^ent  and  its  acceptance  indicates  a  real 
intent  that  so  much  of  the  work  as  has  been  done  shall 
belong  to  the  buyer. 

This  is  clearly  indicated  in  Wood  v.  Bell.^^^  One  Joyce 
had  agreed  to  build  for  plaintiff  a  ship  of  a  certain 
description,  for  which  plaintiff  w^as  to  make  payment  in 
instalments  at  various  times,  regardless  of  the  actual 
stage  of  completion  of  the  work.  Before  the  ship  was 
completed,  or  in  any  way  expressly  indicated  as  belong- 
ing to  plaintiff,  Joyce  became  bankrupt  and  the  question 
of  title  arose.  The  court  said,  ''The  property  does  not 
pass  merely  by  its  being  manufactured,  but  only  when 
it- is  the  intention  of  the  parties  that  it  shall  pass."  It 
held  that  title  was  in  the  plaintiff,  not  because  the  work 
was  to  be  paid  for  in  instalments,  nor  because  the  ship 
was  of  a  peculiar  construction  particularly  required  by 
plaintiff,  nor  because  plaintiff's  name  had  been  punched 
in  the  keel,  but  because  all  the  circumstances  of  the 

132—5  El.  &  Bl.  772,  119  Eng. 
Rep.  669,  Affd.  6  El.  &  Bl.  355,  119 
Eng.  Rep.  897. 


78  THE  LAW  OF  SALES 

transaction,  as  a  whole,  indicated  that  such  had  been  the 
intent  of  the  parties. ^^^ 

In  America  the  fact  that  work  is  to  be  paid  for  in 
installments  as  it  progresses,  or  that  it  is  under  the  super- 
vision of  the  seller,  or  other  like  circumstances,  is  not, 
as  a  general  rule,  held  to  indicate  any  intent  to  pass  title 
as  the  work  is  completed.  In  Clarkson  v.  Stevens,^^*  the 
Supreme  Court  decided  that  title  to  a  certain  vessel  to  be 
manufactured  for  the  United  States  government  had 
not  passed  to  the  government  on  completion.  In  reach- 
ing this  conclusion  the  court  said,  "The  courts  of  this 
country  have  not  adopted  any  arbitrary  rule  of  construc- 
tion as  controlling  such  agreements,  but  consider  the 
question  of  intent,  open  in  every  case,  to  be  determined 
upon  the  terms  of  the  contract,  and  the  circumstances 
attending  the  transaction.  And  such  seems  to  us  to  be 
the  true  principle.  According,  we  are  of  opinion,  that 
the  fact  that  advances  were  made  out  of  the  purchase 
money,  according  to  the  contract,  for  the  cost  of  the  work 
as  it  progressed,  and  that  the  government  was  authorized 
to  require  the  presence  of  an  agent  to  join  in  certifying 
to  the  accounts,  are  not  conclusive  evidence  of  an  intent 
that  the  property  in  the  ship  should  vest  in  the  United 
States  prior  to  final  delivery. '  '^^^ 

133— Moody   V.   Brown,   34    Me.  L.  449 ;  Re  Revenue  Cutter  ft2,  Fed. 

107;   Butterworth  v.  McKinley,  11  Cas.    $11714;    The   Poconoket,    67 

Humph.   (Tenn.)  206;   Sandford  v.  Fed.  265;  The  Yukon  River  Co.  v. 

Wiggins   Ferry   Co.,   27   Ind.   522;  Grotto,  136  Cal.  538;   Andrews  v. 

Scudden  v.  Calais  Steamboat  Co.,  Durant,  11  N.  Y.  35. 

1  Cliff.  370;  Clark  v.  Spence,  4  Ad.  In    the    case    of    The    John    B. 

&  E.  448;   Carruthers  v.  Paine,  5  Ketcham,  97  Fed.  872,  the  court, 

Bing.  270;  Laidler  v.  Burlinson,  2  while     admitting     that     intention 

M.  &  W.  602.  would  govern,  held  that  the  parties 

,„.     ,n/.  TT   o    rnr  ^^.d  uo  intentiou  to  pass  title  at 

1^4 — lUb  U.  b.  oOo.  ,,  4.     «  •     i  ,,         J. 

the  payment  of  installments  even 

135 — Williams    v.    Jackman,    16  though  engines   belonging  to  the 

Gray  (Mass.)  514,  even  though  an  buyer  had  been  worked  into  the 

agent  of  the  buyer  had  been  per-  ship.    For  the  manufacturer  to  In- 

mitted  to  supervise  the  construe-  corporate   property   of   the   buyer 

tion;   Edwards  v.  Elliott,  36  N.  J.  in   something   which   fits   the   de- 


TRANSFER  OF  TITLE  79 

Rule  in  Equity. — The  rule  that  ownership  will  not 

be  treated  as  having  passed  unless  there  is  something 
more  to  show  intent  than  mere  manufacture  or  acquisi- 
tion, is  not  altogether  adhered  to  by  courts  of  equity.  It 
is  frequently  held  that  whatever  powers  or  privileges  the 
parties  intended  should  eventually  pass  to  the  buyer  will 
be  given  effect  by  courts  of  equity,  even  as  against  third 
persons  who  have  secured  intervening  rights,  as  soon 
as  they  are  capable  of  passing.  In  Kribbs  v.  Alford^^^ 
plaintiff  was  the  mortgagee  of  certain  property  already 
owned  by  the  mortgagor  and  of  other  described  prop- 
erty to  be  acquired.  This  latter  property  was  sub- 
sequently acquired  by  the  mortgagor,  but  before  any 
further  demonstration  of  intent  to  pass  an  interest  in 
it  to  the  mortgagee  was  made,  the  mortgagor  sold  it 
to  the  defendants,  who  took  possession.  These  pur- 
chasers did  not  actually  know  of  the  mortgage,  but  were 
held  to  have  had  constructive  notice  of  it  because  it  had 
been  recorded.  The  court  held  the  plaintiff's  interest 
to  be  paramount  to  that  of  the  defendants.  It  admitted 
that  the  plaintiff's  claim  would  be  invalid  at  law,  but 
said,  ' '  Invalidity  at  law  imports  nothing  more  than  that 
a  mortgage  of  property  thereafter  to  be  acquired  is  inef- 
fectual as  a  grant  to  pass  the  legal  title.  A  court  of 
equity,  in  giving  effect  to  such  a  provision,  does  not  put 
itself  in  conflict  with  that  principle.  It  does  not  hold 
that  a  conveyance  of  that  which  does  not  exist  operates 
as  a  present  transfer  in  equity,  any  more  than  it  does  in 
law.    But  it  construes  the  instrument  as  operating  by 

scription  in  the  contract  of  sale  contract  has  been  pointed  out, 
seems  clearly  to  indicate  that  he  price  ascertained,  etc.,  title  will  be 
intends,  at  least,  that  the  contract  presumed  to  have  passed  regard- 
shall  apply  to  that  particular  prop-  less  of  delivery.  In  Re  McDonald, 
erty.  The  holding  of  the  court,  138  Fed.  666,  title  to  uncompleted 
that  despite  this  fact  he  did  not  ships  was  held  to  have  passed  be- 
intend  title  to  pass,  is  quite  out  of  cause  the  parties  had  expressed 
harmony   with   the    general    prin-  an  intent  that  it  should. 

ciple    already    pointed    out    that         135 120  N.  Y.  519. 

when  the  property  subject  to  the 


80  THE  LAW  OF  SALES 

way  of  present  contract  to  give  a  lien,  which  as  between 
the  parties  takes  effect  and  attaches  to  the  subject  of  it 
as  soon  as  it  comes  into  the  ownership  of  the  party. 
Such  we  deem  the  rule  to  be  in  equity  in  this  state." 
The  principle  behind  such  holdings  is  expressed  as  being 
that,  ' '  Equity  treats  a  mortgage  of  property  to  be  after- 
ward acquired  as  a  contract,  binding  in  conscience,  to 
execute  a  mortgage  upon  it  at  the  very  instant  it  comes 
into  being,  and  will  enforce  specific  performance.  It 
does  more :  It  considers  it  as  already  done  if  no  specific 
performance  be  requested;  and  then,  by  virtue  of  the 
equitable  doctrine  of  notice,  binds  everybody  to  respect 
the  equitable  lien  who  knows  of  it,  or,  without  knowing 

of  it,  has  got  the  property  without  valuable  considera- 
tion.""? 

Many  courts  have  held,  however,  that  even  in  equity  a 
buyer  gets  no  rights  in  the  property  itself  by  a  mere  sale 
of  property  to  be  acquired  in  the  future."^ 

But  even  of  these  cases  a  number  hold  that  if  posses- 
sion is  actually  taken  it  will  be  treated  as  a  transfer  as 
of  the  date  of  the  mortgage,  so  far  as  concerns  prefer- 
ences under  bankruptcy  and  insolvency  acts."^ 

Potential  Interests.— Sales  of  "potential  interests*' 
do  not  fall  within  the  foregoing  discussion.     They  are 

137— From     Little     Rock,     etc.  Lighting  Co.  v.  Rust,  117  Ala.  680; 

R.   R.    Co.   V.   Page,   35   Ark.   304.  Pennock  v.  Coe,  23  How.  117;  Butt 

Accd.   Phillips  v.  Winslow,   18  B.  v.  Ellett,  19  Wall.  544. 
Monroe    (Ky.)    431,    68   Am.    Dec.  The    subject     is     discussed    at 

729;     Pierce    v.    Milwaukee,    etc.  length  in  19  Harvard  L.  R.  557. 
R.  R.,  24  Wis.  551,  1  Am.  Rep.  203;  138— Gittings   v.   Nelson,   86  III. 

Morrill   v.  Noyes,   56   Me.   458,  96  591;   Redd  v.  Burrus,  58  Ga.  574; 

Am.  Dec.  486;  Apperson  v.  Moore,  Mchts.    Bk.    v.    Lovejoy,    84    Wis, 

30  Ark.  56,  21  Am.  Rep.  170;  Hurst  601;    Chase   v.    Denny,    i;;o   Mass. 

&   McWhorter  v.   Bell   &   Co.,   72  566;    Orcutt  v.   Moore,   IM   Mass. 

Ala.  336;  Grant  v.  Steiner,  65  Ala.  48;  Cooke  v.  Blanchard,  144  Mass. 

499;  Holroyd  v.  Marshall,  10  H.  of  207. 

L.   Cas.   191,  the  leading  English         139— Chase  v.  Denny,  130  Mass. 

case.       But,     contra,     Burns     v.  566;  Mower  v.  McCarty,  79  Vt.  142, 

Campbell,  71  Ala.  271,  288;  Elec.  7  L.  R.  A.  (n.  s.)  418,  annotated. 


TRANSFER  OF  TITLE  81 

treated  by  both  equity  and  law  courts  either  as  though 
the  *' potential  interest"  were  a  thing  capable  of  sale 
and  in  actual  existence  at  the  date  of  the  contract,  or 
as  though  acquisition  of  ownership  alone  passed  the  title. 
There  is  no  inherent  or  practical  reason  for  this  distinc- 
tion. The  ''potentiality"  may  have  a  separate  existence 
metaphysically,  but  it  can  not  be  so  distinguished  really. 
The  practical  reasons  that  might  apply  in  the  preceding 
cases  would  apply  also  to  cases  of  sales  of  a  potentiality. 
Nevertheless,  the  legal  distinction  does  exist. 

In  those  cases  where  the  thing  sold  is  the  future 
natural  increase  or  natural  production  of  something 
already  owned  by  the  seller  it  is  generally  held  that  a 
present  demonstration  of  intent  to  transfer  ownership 
will  be  recognized  by  the  courts  as  having  transferred 
it  when  the  thing  does  come  into  existence,  without  any 
further  demonstration  of  intent.  As  was  just  pointed 
out,  a  buyer  of  something  not  in  existence  at  the  time  of 
sale,  to  whom  there  has  been  no  subsequent  transfer, 
has  no  legal  rights  against  a  third  person  who  acquired 
an  ownership  after  the  thing  came  into  existence.  But 
where  the  thing  sold  is  to  come  into  existence  as  the 
natural  increase  or  product  of  something  already  o"s\Tied 
by  the  seller,  such  a  buyer's  rights  are  treated  as 
superior  to  those  of  another  who  purchased  after  the 
thing  came  into  existence. 

For  instance,  in  one  case^*°  it  appeared  that  Rogers 
had  allowed  his  stallion  to  cover  Buler's  mare,  on  Buler's 
agreement  that  the  resulting  colt  should  be  the  property 
of  Blevins.  Nothing  was  done  thereafter  to  effectuate 
or  demonstrate  a  transfer.  When  the  colt  was  born, 
Buler,  in  breach  of  his  agreement,  sold  it  to  McCarty. 
Blevins,  however,  was  allowed  to  recover  it  in  replevin 
on  the  ground  that  he  had  title.     This  holding  differs 

140 — McCarty  v.  Blevins,  5 
Yerger  (Tenn.)  195,  26  Am.  Dec. 
262, 


82  THE  LAW  OF  SALES 

from  the  customary  ones,  which  support  the  third  par- 
ties' rights  as  against  one  who  had  bought  before  the 
chattel  was  in  existence,  because  of  the  fact  that  the  colt 
was  '  *  potentiallj'' "  in  existence  at  the  time  of  the  agree- 
ment.^*^ 

It  does  not  appear  with  certainty  from  the  cases,  and 
does  not  particularly  matter,  whether  the  title  to  the 
potentiality  is  considered  as  passing,  so  that  the  colt,  or 
the  crop,  or  whatever  the  thing  may  be,  belongs  to  the 
buyer  as  the  product  of  the  potentiality  of  which  he  had 
already  become  owner,  or  whether  the  courts  simply  make 
such  sales  an  exception  to  the  general  rule  and  hold  that 
title  to  the  colt,  etc.,  transfers  to  the  buyer  when  it  comes 
into  existence  because  of  the  previous  agreement  that  it 
should  do  so  and  without  any  concurrent  act.  The  result 
is  the  same  on  either  theory. 

Some  cases  support  the  former  theory  and  indicate 
that  the  *' potentiality"  is  something  capable  of  an  own- 
ership separate  and  apart  from  the  ow^iership  of  the 
thing  of  which  it  is  physically  an  indivisible  part.  Thus, 
one  person  may  be  o^vner  of  a  mare  and  another  owner 
of  her  reproductive  power,  although  the  two  things  can 
not  be  physically  separated.  In  Fonville  v.  Casey ^*^ 
defendant  had  contracted  that  the  first  female  colt  to 
be  born  from  his  mare  should  belong  to  plaintiff.  When 
a  female  colt  was  born  defendant  refused  to  let  plaintiff 
have  her.  The  court  permitted  plaintiff  to  recover  in 
trover  as  owner  of  the  colt.  The  reason  given  was  that 
*' although  it  be  uncertain  whether  the  thing  granted 
will  ever  exist,  and  it  consequently  can  not  be  actually 
in  the  grantor,  or  certain,  yet  it  is  in  him  potentially,  as 

141 — Sawyer  v.  Gerrish,  70  Me.  Mitchell   v.    Abernathy,    194    Ala. 

254,  25  Am.  Rep.  323;   Watkins  v.  698,  L.  R.  A.  1917  C  6;   Nestell  v. 

Wyati,  9  Baxt.  (Tenn.)  250,  40  Am.  Hewitt,  19  Abb.  N.  C.  (N.  Y.)  282, 

Rep.  90;   Booker  v.  Jones  Admx.,  crop  from  roots  already  in  ground. 

55  Ala.  266;   Fonville  v.  Casey,  1  142—1   Murphey    (N.  C.)   389,  4 

Murphey   (N.  C.)   389,  4  Am.  Dec.  Am.  Dec.  559. 
559;    Hull   V.   Hull,  48   Conn.   250; 


TRANSFER  OF  TITLE  83 


being  a  thing  accessory  to  something  which  he  actually 
has  in  him,  for  such  potential  property  may  be  the  sub- 
ject, of  a  contract  executed,  as  a  grant  or  the  like."  This 
indicates  that  a  present  title  to  the  potentiality  passed 


143 


What  is  a  Potential  Interest. — This  rule,  that, title 

to  the  tangible  thing  sold  is  in  the  buyer  as  soon  as  it 
comes  into  existence,  applies  only  when  the  thing  was 
**  potentially "  in  existence  at  the  time  of  the  contract. 
Generally  speaking,  it  may  be  said  that  nothing  has 
potential  existence  which  is  not  the  natural  increase  or 
product  of  something  in  tangible  existence.  The  young 
of  animals,  crops  produced  by  the  earth,  and  wool 
grown  upon  animals  are  all  natural  products  and  have 
all  been  held  to  have  a  potential  existence.  Only  such 
things  are  natural  products,  and,  Avith  some  notable 
exceptions,  nothing  else  has  been  held  to  have  a  potential 
existence.  A  probability,  or  expectation,  that  because  of 
one's  possession  of  certain  things  one  can  acquire  or 
create  other  things  by  his  own  exertions,  and  not  as  the 
result  of  the  action  of  nature,  is  not  a  potential  interest. 
In  Low  V.  Pew,^**  there  was  a  probability  that  the  crew 
of  a  fishing  schooner  would  catch  fish,  but  the  fish  would 
not  be  the  natural  production  of  the  vessel,  and  it  was 
held  that  they  had  no  potential  existence.  So,  too,  in 
Orcutt  V.  Moore,^"  the  owner  of  land  had  leased  it  to  a 
tenant  for  half  the  crop  which  the  tenant  should  raise. 
The  owner  then  sold  his  half  of  the  prospective 
crop  to  the  plaintiff,  but  before  plaintiff  could  take 
possession  of  it,  after  its  eventual  maturity,  defend- 
ant   seized   it   for   an   execution    creditor.      The    court 

143 — Losecco    v.    Gregory,    108  Hawley,    Hobart    132,    to    which 

La.   648,  "Hope  of  a  future  crop,  most  cases   on   potential   interest 

as  an  incorporeal  thing,  separate  go  back  for  authority  does  not  in- 

from  the  crop  itself"  is  made  mer-  dicate  either  theory, 

chantable  by  Civ.  Code,  sec.  2450,  144—108  Mass.  347. 

2451.  145—134  Mass.  48. 

The  early  case  of  Grantham  v. 


84  THE  LAW  OF  SALES 

said  the  rights  of  the  parties  depended  upon  a  find- 
ing by  the  jury  as  to  whether  tlie  owner  of  the  land 
had  retained  a  potential  interest  in  half  of  the  crop  or 
had  sold  his  entire  potential  interest  to  the  tenant  and 
was  merely  to  be  repaid  with  half  of  the  crop.  If  he  had 
retained  an  ownership  in  the  future  crop,  and  had  con- 
veyed to  the  tenant  ownership  in  only  half  of  what 
should  be  raised,  his  sale  of  his  potential  interest  to 
plaintiff  gave  plaintiff  title  to  the  half  of  what  had  been 
raised.  But  if  the  lessor  had  intended  to  transfer  owner- 
ship of  all  the  crop  to  the  lessee  and  take  back  half  of  it 
as  pay,  he  had  not  a  potential  interest  but  only  an 
expectancy  of  payment.  This  expectancy  he  could  not 
transfer  like  a  potential  interest  and  defendant's  rights 
would  be  superior  to  plaintiff's.  This  illustrates  well 
the  difference  in  rules  between  sale  of  what  one  does 
not  o^vn,  but  expects  to  acquire,  and  the  sale  of  a  poten- 
tiality out  of  which  some  tangible  thing  is  expected  to 
spring.  In  the  former  case  title  does  not  pass  without 
some  demonstration  of  intent  to  pass  it  after  the  seller 
has  acquired  it ;  in  the  latter  the  title  to  the  tangible  thing 
vests  in  the  purchaser  immediately  on  its  coming  into 
existence  as  a  result  of  the  sale  of  the  potentiality."® 

146 — Sortie  cases  take  a  con-  ment  lien  against  all  of  H's  prop- 
trary  view  and  hold  that  there  erty.  The  issue  was  as  to  re- 
may  be  a  potential  interest  which  spective  rights  of  K.  and  plaintiff 
will  pass  title  in  futuro  in  things  in  this  excess.  The  court  called 
which  are  the  expected  but  not  H's  right  to  the  excess  a  "poten- 
the  natural  product  of  property  tial  interest"  in  it  and  declared 
already  owned.  In  Wiant  v.  K's  title  therefore  superior  to  that 
Hayes,    38    W.    Va.    681,    one    H.  of  plaintiff. 

owned    certain    land    which    was  In  Dargin  v.  Hewlett,   115  Ala. 

about   to   be   sold   for  taxes.     By  510,  the  owner  of  a  race  track  was 

the  law  any  excess  from  the  sale  said,   as   a  matter   of   dictuvi,   to 

over  the  amount  of  taxes  would  have  a  "potential  interest"  in  the 

belong  to  H.     Before  the  tax  sale  profits     of     its     operation     which 

H.    sold   to    K.    his   right   to    any  could  be  the  subject  of  sale  so  as 

possible  excess.     The  excess  not  to  pass  title  without  further  act. 

being  in  existence  K.  could  have  As    the    action   was    between   the 

no  title  at  that  time.     Subsequent  parties     for     an     accounting     in 

to  this,  plaintiff  acquired  a  judg-  equity,   the   statement  was  unre- 


TRANSFER  OF  TITLE  85 

There  is  some  question  whether  the  doctrine  of  poten- 
tial interest  is  broad  enough  to  pass  title,  without  fur- 
ther act,  to  crops  which  are  not  even  planted  at  the  time 
of  sale.  Some  courts  have  held  that  even  in  such  case 
title  passes  as  soon  as  the  crop  comes  into  existence.**'' 
The  general  rule,  however,  appears  to  be  that  there  is 
no  potential  interest  in  crops  for  which  the  seed  has  not 
been  soAvn.**^  It  has  even  been  said  that  title  would  not 
pass  until  the  crop  was  threshed  and  ready  for 
dehvery.**^ 

There  is  a  similar  conflict  as  to  whether  there  is  a 
potential  interest  in  the  young  of  animals  before  the  dam 
has  actually  been  covered  by  the  sire.  Some  cases  recog- 
nize that  there  is  such  an  interest  prior  to  impregna- 
tion.*^°  Other  cases  hold  that  no  title  passes  by  the 
agreement,  without  some  subsequent  act,  unless  the  off- 
spring was  in  foetu  at  the  time.*^* 

lated  to  any  issue.  Kerr  v.  Crane,  109;  Miller  v.  Chapel,  35  Minn. 
212  Mass.  224,  40  L.  R.  A.  (n.  s.)  399,  29  N.  W.  52;  but,  compare 
692.  As  to  whether  the  assignment  Welton  v.  Hill,  65  Minn.  273; 
of  a  debt  due  or  to  become  due  Patch  v.  Tutin,  15  M.  &  W.  110. 
creates  in  the  assignee  a  title  or  143 — Farmers  Natl.  Bk.  v. 
mere  personal  right,  see  the  con-  Coyner,  44  Ind.  Ap.  335;  Hutchin- 
troversial  articles  by  Messrs.  Cook  son  v.  Ford,  9  Bush  (Ky.)  318,  15 
and  Williston  in  the  Harvard  Law  Am.  Rep.  711 ;  Apperson  v.  Moore, 
Review.  30  Ark.  56,  21  Am.  Rep.  170;  Hurst 
Many  cases  hold  that  an  assign-  v.  Bell,  72  Ala.  336,  dictum; 
ment  of  rights  of  action,  to  be-  Grant  v.  Steiner,  65  Ala.  499;  Wel- 
come effective  in  futuro,  Is  valid,  ton  v.  Hill,  65  Minn.  273. 
but  this  does  not  involve  question  149 — Welton  v.  Hill,  65  Minn, 
of   title   and   should   not   be   con-  273. 

^^^^^-  150— McCarty     v.      Blevins,      5 

147— Dickey  v.  Waldo,  97  Mich.  Yerger   (Tenn.)   195,  26  Am.  Dec. 

255,   holds   that   the    buyer   could  262;   Hull  v.  Hull,  48  Conn.   250; 

bring    an    action    for    conversion  Fonville  v.  Casey,  1  Murphey  (N. 

against     the     seller;     Argues     v.  C.)  389,  4  Am.  Dec.  559. 

Wasson,  57  Cal.  620,  21  Am.  Rep.  151— Bates   v.    Smith,   83    Mich. 

718;    Jones   v.   Webster,   48   Ala.  347. 


CHAPTER  III 

Seller's  Remedies  and  Rights 
1.    Both  Title  and  Possession  Retained 

Thus  far  we  have  discussed  the  question  whether,  in 
the  particular  case,  title  has  passed  to  the  buyer  or  not. 
We  now  assume,  without  further  discussion,  that  it  has 
passed  or  has  not  passed  as  the  fact  may  be  in  the  par- 
ticular case,  and  consider  the  seller's  remedies  upon  that 
assumption. 

Breach  of  Contract. — As  was  before  pointed  out,  every 
transfer  of  title  must  be  preceded  or  accompanied  by 
an  agreement  to  pass  title,  which  agreement  is  in  effect 
a  contract,  either  express  or  tacit.  Until  there  is  at 
least  a  contract  to  buy  and  sell  there  is  of  course  no 
*' seller"  to  claim  any  remedy — there  is  at  most  only  a 
would-be  seller.  But  after  a  contract  has  been  entered 
into,  and  before  title  has  been  passed,  the  seller  has  the 
same  rights  and  remedies  that  any  promisee  under  a 
contract  has.  The  buyer  has  promised  to  take  the  title 
to  certain  described  property  and  to  pay  a  certain  price 
in  exchange  therefor.  Failure  so  to  do  has  the  same 
effect,  and  no  more,  as  any  breach  of  contract.  It  would 
be  out  of  place  to  discuss  the  rights  in  respect  to  a  con- 
tract and  the  remedies  for  its  breach  in  this  work.  They 
involve  too  general  a  knowledge  of  contracts  to  be  briefly 
discussed  and  reference  must  be  made  to  works  treating 
of  contract  law  especially. 

In  general,  it  may  be  said  mthout  discussion,  that 
under  certain  circumstances  of  failure  by  the  buyer  to 
perform  his  promise,  the  seller  may  treat  the  contract 

86 


THE  SELLER'S  RIGHTS  87 

as  rescinded  and  as  though  it  had  never  existed.*  In 
any  event,  if  there  has  been  a  breach  by  the  buyer  the 
seller  may  treat  his  own  contract  liability  as  being  at  an 
end  and  need  do  nothing  more  under  the  agreement.  He 
may  have  received  nothing  from  the  buyer,  but,  con- 
versely, he  has  parted  with  no  title  and  may  not  even 
have  parted  with  possession. 

If  the  buyer  breaks  his  contract,  the  seller,  regardless 
of  his  other  remedies,  may  always  sue  for  damages. 
It  is  not  the  purpose  of  this  book  to  discuss  what  consti- 
tutes a  breach  of  contract  by  a  party  thereto.  Neither 
can  the  things  which  the  other  party  must  do,  or  the  posi- 
tion he  must  assume,  before  he  can  sue  because  of  the 
breach,  be  here  gone  into.  It  may  be  said,  however,  that, 
broadly  speaking,  the  seller  must  himself  be  mlling  and 
able  to  carry  out  his  side  of  the  bargain,  and  must  have 
done  everything  necessary  according  to  the  contract  to 
entitle  him  to  performance  by  the  buyer.f 

Damages. — If  the  buyer 's  breach  occurs  before  the 


seller  has  parted  with  either  title,  or  possession,  it  is 
obvious  that  the  seller's  loss,  his  damage,  is  only  the 
difference  between  what  he  could  get  immediately  from 
some  other  buyer  and  what  the  defaulting  buyer  agreed 
to  pay.  Since  he  still  has  the  chattel,  he  is  not  damaged 
to  the  full  extent  of  the  agreed  price,  but  only  to  the 
extent  of  the  difference  in  realizable  value  of  the  chattel 
and  the  agreed  price.    This  is  the  clearly  settled  rule.^ 

1— Bigelow  V.  Legg,  102  N.  Y.  173;  Mayo  v.  Lathern,  159  Mich. 
652;  Unexcelled  V.  Pontes,  130  Pa.  136;  Moffat  v.  Davitt,  200  Mass. 
536;  Murray  v.  Doud,  167  HI.  368;  452;  Rickey  v.  Tenbroeck,  63  Mo. 
Cohen  v.  Piatt,  69  N.  Y.  348;  563;  Poel  v.  Brunswick-Balke  Co., 
Pittsburgh  etc.  R.  R.  v.  Aeck,  50  159  N.  Y.  App.  Div.  365;  Peters  v. 
Ind.  303;  Tufts  v.  Bennett,  163  Cooper,  95  Mich.  191;  Mohr  Hard- 
Mass.  398;  Manhattan,  etc.  Ry.  ware  Co.  v.  Dubey,  136  Mich.  677, 
Co.   V.   Genl.   Elec.   Co.,  226  Fed.  difference   between   contract   and 

♦See  Uniform  Sales  Act,  Section  65. 

tSee  Uniform  Sales  Act,  Section  41,  42,  43,   (1),   (2),   (3),   (4),   (5), 
44,  (1).  (2),  (3),  (4),  45,  (1),  (2),  46,  (1),  (2),  (3). 


88 


THE  LAW  OF  SALES 


This  value  to  the  seller  of  the  chattel  which  he  still 
owns  should  logically  be  the  largest  amount  which  he 
could  get  from  someone  else — that  is  to  say,  its  market 
^alue — as  soon  after  the  buyer 's  refusal  as  he  could  rea- 
sonably be  expected  to  re-sell  it.  There  is  very  much 
loose  statement  in  the  decisions,  but  this  rule  is  the  basis 
on  which  the  courts  strive  to  ascertain  the  damages 
fairly.** 

Of  course,  if  the  seller  would  be  put  to  extra  expense 
in  finding  another  purchaser  and  selling  to  him,  the  value 
of  the  chattel  to  the  seller  would  not  be  the  gross  price 
of  the  resale,  but  that  price  less  the  cost  of  making  the 
second  sale.  The  courts  therefore  allow  this  expense  to 
be  deducted  from  the  possible  resale  value  in  order  to 
fix  the  actual  value  to  the  seller  of  the  chattel  left  in  his 
hands  by  the  defaulting  buyer.^ 

On  the  other  hand,  if  the  seller  could  get  rid  of  the 
goods  to  another  without  certain  expenses  which  he 


cost  to  seller  rejected  as  measure 
of  damage;  Cole  v.  Zucarello,  104 
Tenn.  64;  Krebs  Hop  Co.  v.  Lives- 
ley,  59  Ore.  574,  not  limited  to 
difference  between  contract  price 
and  price,  higher  than  market 
value,  which  defendant  later  of- 
fered; Schramm  v.  Boston  Sugar 
Co.,  146  Mass.  211.  This  common 
law  rule  has  been  declared  by 
statute  in  some  states. 

2 — It  has  even  been  held  that 
this  difference  between  the  con- 
tract price  and  the  market  value 
must  be  stated  in  the  petition, 
Ridgley  v.  Mooney,  16  Ind.  Ap. 
362;  Dill  v.  Mumford,  19  Ind.  Ap. 
609. 

3 — Peters  v.  Cooper,  95  Mich. 
191;  Am.  Hide  Co.  v.  Chalkley, 
101  Va.  458;  Holliday  v.  Lesh,  85 
Mo.  Ap.  285;  Tufts  v.  Grewer,  83 
Me.  407;  Piowaty  v.  Sheldon.  167 
Mich.   218;   Woods   v.   Cramer,   34 


S.  C.  508;  Slaughter  v.  Marlow,  3 
Arizona  429;  Hill  v.  McKay,  94 
Cal.  5,  cost  of  transportation  to 
nearest  market;  McCracken  v. 
Webb.  36  la.  551,  cost  of  keeping 
till  market  could  be  found;  Red- 
head Bros.  V.  Investment  Co.,  126 
la.  410,  Id;  Lewis  v.  Greider,  51 
N.  Y.  231,  insurance;  Best  Mer- 
cantile Co.  V.  Brewer,  50  Colo.  455, 
seller's  traveling  expenses;  but 
of.  Penn.  v.  Smith,  93  Ala.  476; 
Texas  Lumber  Co.  v.  Rose  (Tex.) 
103  S.  W.  444,  but  not  expenses  of 
attempted  collection;  Zimmeister 
V.  Rock  Island  Canning  Co.,  145 
Ky.  25,  nor  unnecessary  expenses; 
Chapman  v.  Ingram,  30  Wis.  290, 
Id;  Gehl  v.  Milwaukee  Produce 
Co.,  105  Wis.  573,  Id;  Thurman  v. 
Wilson,  7  111.  Ap.  312,  Id;  Armsby 
Co.  v.  Raymond  Bros.  Co.,  90  Neb. 
553.  necessity  depends  on  facts 
of  each  case. 


THE  SELLER'S  RIGHTS  89 

would  have  been  put  to  had  the  buyer  not  broken  the 
contract,  in  such  case  the  seller  is  not  damaged  by  the 
breach  to  the  full  amount  of  the  difference  between  the 
contract  price  and  the  resale  value,  but  to  that  amount 
less  the  expense  saved.  This  saving  of  expense  should 
be  deducted  from  the  difference.* 

Ascertaining  Damage. — It  being  established  that 

the  seller's  damage  is  the  difference  between  the  agreed 
price  and  the  amount  he  can  get  for  the  chattel  otherwise, 
the  question  is  how  the  latter  amount  shall  be  ascertained. 
This  is  a  matter  of  evidence.  Anything  that  reasonably 
and  properly  tends  to  show  the  market  value  may  be 
given  in  evidence. 

If  no  evidence  at  all  is  given,  the  presumption  is  that 
the  market  value  and  the  contract  value  are  the  same  and 
the  damage  awarded  will,  therefore,  be  merely  nominal — 
six  cents,  or  any  other  small  sum  awarded  for  the  sake 
of  carrying  costs  in  the  suit  in  the  plaintiff's  favor.^ 

On  the  other  hand  it  might  be  that  the  chattel  con- 
tracted for  has  no  monetary  value,  no  saleability  to 
anyone  else  at  all.  In  such  a  case  the  actual  loss  to  the 
seller  through  the  buyer's  breach  of  contract,  being  the 
difference  between  what  the  buyer  agreed  to  pay  and 
the  monetary  value  of  the  chattel  to  the  seller,  which  is 
nothing,  would  be  the  full  amount  of  the  contract  price.^ 

If  it  happens  that  the  market  value  at  the  time  of 
breach  was  in  fact  higher  than  the  contract  price,  and 
the  seller  has  elected  to  treat  the  contract  as  broken, 
and  has  resold  at  the  higher  price,  the  buyer  is,  of  course, 
not  entitled  to  the  surplus.  The  goods  were  not  his — ^he 
having  refused  to  accept  the  title — so  that  he  would  have 
no  right  to  any  part  of  the  resale  price  on  that  ground, 

4 — Newark  City  Ice  Co.  v.  S.  867;  International  Textbook 
Fisher,  76  Fed.  427.  Co.  v.  Schulte,  151  Mich.  149. 

6 — Manhattan  City,  etc.  Ry.  Co. 

5— Tufts  V.  Bennett,  163  Mass.  v.  Genl.  Elec.  Co.,  226  Fed.  173; 
398;    Petigor  v.   Ward,   74   N.   Y.      Wells  v.  Maley.  5  Ky.  L.  Rep.  77. 


90  THE  LAW  OF  SALES 

and,  having  broken  the  contract,  he  can  not  thereafter 
elect  to  enforce  it.' 

It  is  not  obligatory  for  the  seller  to  resell  the  chattel 
if  he  can  furnish  satisfactory  proof  of  its  actual  mone- 
tary value  at  the  time  of  breach  in  some  other  way.' 
Indeed,  in  the  case  of  a  contract  of  sale  of  goods  to  be 
manufactured  and  a  repudiation  by  the  buyer  before 
their  completion  the  seller  is  not  expected  to  continue 
the  work.®    It  is  not  even  permissible  for  him  to  do  so.^° 

If  the  seller  does  elect  to  retain  the  goods  as  his  own 
and  to  prove  their  market  value  in  some  other  way,  the 
fact  that  he  subsequently  resells  the  goods  will  not  in 
any  way  affect  his  recovery  of  the  difference  between 
the  contract  price  and  the  market  value  at  the  time  of 
breach.  If,  for  instance,  the  market  value  at  the  time 
of  his  eventual  resale  should  be  higher  than  the  contract 
price,  he  would  still  be  entitled  to  the  difference  between 
the  market  value  at  the  time  of  breach  and  the  contract 
price.^* 

— -Resale  to  Demonstrate  Damage. — ^If  he  does  choose 
to  make  a  resale,  and  if  he  makes  it  within  a  reasonable 
time  after  breach,  at  the  nearest  available  market,  by 
public  auction,  and  after  actual  or  constructive  notice 
to  the  buyer,  so  that  the  latter  may  protect  himself  by 
being  present,  then  the  amount  realized  at  such  sale  will 
be  accepted  by  the  courts  as  conclusive  evidence  of  the 
market  value.^* 

7 — Warren   v.   Buckminster,   24  S.  W.  188;  Bridgeford  v.  Crocker, 

N.  H.  336.  60  N.  Y.  627. 

8— Barrett    v,    Verdey,    93    Ga.         12— Davis    Sulphur    Ore   Co.    v. 

526;  Hewes  v.  Germain  Fruit  Co.,  Atlantic  Co.,  109  Ga.  607;   Hewes 

106    Cal.    441;    Kellog   v.   Frolich,  v.  Germain  Fruit  Co.,  106  Cal.  441; 

139  Mich.  612.  Carriage  Co.  v.  Gilmore,  123  Mo. 

9— Gardner  v.  Deeds,  116  Tenn.  Ap.  19;   Fox  v.  Woods,  96  N.  Y. 

128,  4  L.  R.  A.  (n.  s.)  740.  S.    117,   even   though   the   resale 

10 — Heiser  v.  Mears,  120  N.  C.  was  private  instead  of  at  public 

443.  auction;    Van  Brocklen  v.   Smeal- 

11— Sour  Lake  Townsite  Co.  v.  lie,    140    N.    Y.    70,    private    sale; 

Deutser  Furniture  Co.,   (Tex.)   94  Pollen   v.   LeRoy,   30   N.   Y.   549, 


THE  SELLER'S  RIGHTS  91 

But  even  if  the  seller  does  not  give  notice  of  resale,  or 
otherwise  observe  all  the  strict  requirements,  the  price 
actually  secured  by  the  resale  is  not  absolutely  rejected 
as  evidence.  Only  its  weight  is  aifected.  Inasmuch  as 
the  seller  does  not  need  to  make  a  resale  at  all  in  order 
to  fix  his  damages,  if  he  can  furnish  other  evidence',  it 
naturally  follows  that  he  can  resell  or  otherwise  dispose 
of  his  property  in  any  way  he,  as  owner,  sees  fit.  The 
only  limitation  upon  this  right  of  disposal  is  the  obviously 
fitting  one  that  the  amount  secured  by  the  resale  will  not 
be  accepted  as  conclusive  evidence  of  the  real  market 
value  unless  the  resale  was  made  under  such  circum- 
stances as  to  indicate  that  the  amount  received  was  in 
fact  the  market  value.  As  one  court  put  it,  ''The  sale, 
in  such  circumstances,  is  but  a  method,  as  before  indi- 
cated, of  enforcing  a  right  to  damages  for  breach  of  con- 
tract, and  of  making  evidence  of  the  precise  amount  of 
such  damages.  *  *  *  If  he  sues  for  his  damages  without 
selling  the  property  or  without  selling  the  same  with 
proper  regard  to  the  rights  of  the  executory  vendee,  he 
takes  upon  himself  the  burden  of  establishing  the  fair 
market  value  of  the  goods  at  the  time  of  the  breach.  So 
it  is  said  that  notice  to  the  vendee  of  the  vendor's  inten- 
tion to  make  the  sale,  and  the  sale,  with  proper  regard  to 
the  interests  of  the  former,  merely  create  definite  and 
conclusive  evidence  of  such  market  value. '  '^'  The  courts, 
therefore,  do  not  refuse  to  receive  the  results  of  a  resale 
as  evidence  of  the  market  value  merely  because  it  was 
made  mthout  notice,  or  was  a  private  sale  instead  of  a 
public  one,  or  was  in  any  respect  not  conventional.  They 
receive  it  in  evidence,  just  as  any  other  evidence  is 

without  notice  to  buyer;  Wrigley  reasonable  time;  Black  River 
V.  Cornelius,  162  111.  92,  without  Lumber  Co.  v.  Warner,  93  Mo.  374, 
notice;  Aclcerman  v.  Rubens,  167  accd.;  Magnes  v.  Sioux  City  Co., 
N.  Y.  405,  although  seller  himself  14  Colo.  Ap.  219;  McDonald  Cot- 
was  purchaser  at  public  sale;  ton  Co.  Mayo,  —  Miss.  — ,  38 
Nelson  v.  Hirsch  &  Sons  Co.,  102  So.  372. 

Mo.  Ap.   498,   resale  made   some  13 — Pratt  v.  S.  Freeman  &  Sons 

time  after  breach,  but  within  a  Co.,  115  Wis.  648. 


92 


THE  LAW  OF  SALES 


received,  and  subject  to  the  general  rules  of  materiality, 
relevancy,  competency,  etc.^*  But  it  will  not  be  received 
as  conclusive  evidence  unless  it  appears  to  have  been  a 
fair  demonstration,  from  the  point  of  view  of  both  par- 
ties, of  the  real  market  value.^^* 

It  must  be  borne  in  mind  that  the  foregoing  discussion 
is  applied  to  resales  to  fix  the  market  value  in  cases 
where  title  is  still  in  the  seller.  When  title  has  passed 
from  the  seller,  and  he  resells,  as  agent  of  the  buyer,  to 
enforce  his  seller's  lien,  other  principles  apply." 

Recovery  of  Purchase  Price. — A  seller  who  still  retains 
title  and  possession  is  hmited  to  this  action  for  damages 
for  breach  of  contract.  He  can  not  sue  to  recover  the 
amount  of  the  purchase  price,  as  such."   Various  writers 


14 — Gehl  V.  Milwaukee  Produce 
Co.,  105  Wis.  573;  Carriage 
Co.  V.  Gilmore,  123  Mo.  Ap. 
19;  Anderson  v.  Frank,  45  Mo. 
Ap.  482;  Moore  v.  Potter,  155 
N.  Y.  481;  A  resale  made  after 
suit  commenced  will  not  be  re- 
ceived in  evidence,  Hardwick  v. 
Can  Co.,  113  Tenn.  657;Brownlee 
V.  Bolton,  44  Mich.  218;  Pollen  v. 
LeRoy,  30  N.  Y.  549;  Am.  Hide  Co. 
V.  Chalkley,  101  Va.  458,  notice  of 
Intent  to  resale  is  mere  evidence 
relating  to  market  value. 

Some  distinction  is  made  be- 
tween notice  of  intention  to  sell 
and  notice  of  time  and  place.  Some 
cases  hold  specifically  that  even 
the  former  is  not  necessary, 
Leeper  v.  Schroeder,  24  Colo.  Ap. 
164;  Wallace  v.  Coons,  48  Ind.  Ap. 
511;  Clore  v.  Robinson,  18  Ky.  L. 
R.  851;  Kellogg  v.  Frolich,  139 
Mich.  312;  and  it  is  generally  held 
that  the  buyer's  refusal  puts  him 
on  notice  that  a  resale  may  be 
made,   Wrigley   v.   Cornelius,    162 

♦See  Uniform  Sales  Act,  Section 


111.  92;  Ullman  v.  Kent,  60  111.  271; 
McDonald  Cotton  Co.  v.  Mayo,  — 
Miss.  — ,  38  So.  372. 

But  other  cases  require  notice 
of  an  intention  to  resell  at  least, 
Winslow  V.  Harriman  Co.,  42  S. 
W.  698,  semhle,  as  title  had 
passed;  Pillsbury  Flour  Co.  v. 
Walsh,  60  Ind.  Ap.  76, 110  N.  E.  96; 
Davis  Sulphur  Ore  Co.  v.  Atlanta 
Co.,  109  Ga.  607. 

15 — Case  v.  Simonds,  7  N.  Y. 
Supp.  253;  Bigelow  v.  Legg,  102 
N.  Y.  652. 

16— See  p.  129. 

17 — Although,  as  noted  above, 
the  damages  may  happen  to  equal 
the  purchase  price. 

The  retention  of  title  should  not 
be  confused  with  retention  of  pos- 
session. As  we  have  already 
seen,  title  may  be  transferred,  and 
usually  is,  before  possession  is 
passed  and  even  though  the  buyer 
has  no  right  to  possession  till  pay- 
ment. In  such  case  the  buyer's 
refusal  to  accept  the  possession  of 
64,  (1),  (2),  (3),  (4). 


THE  SELLER'S  RIGHTS  93 

have  pointed  out  that  while  an  action  will  lie  to  recover 
damages  for  breach  of  a  contract,  even  though  the  con- 
sideration for  the  contract  be  only  a  reciprocal  promise, 
an  action  in  debt  for  a  specific  sum  owing  to  the  plaintiff 
from  the  defendant  can  not  be  maintained  unless  the 
defendant  has  received  something  more  than  a  mere 
promise  from  the  plaintiff."  Until  the  seller  has  passed 
the  title  to  the  buyer,  therefore,  the  latter  has  received 
only  the  seller's  promise  and  the  seller  is  not  the  owner 
of  the  sum  agreed  to  be  paid.  The  broad  rule  is  indubi- 
tably that  a  seller  who  has  not  in  fact  passed  the  title  to 
the  buyer  can  not  sue  for  any  sum  which  the  buyer  agreed 
to  pay  for  the  title,  but  only  for  damages  resulting  from 
the  buyer's  refusal  to  perform  his  promise.  One  position 
of  the  courts  appears  to  be  that  no  debt  on  the  buyer's 
part  is  implied  by  law  in  return  for  the  seller's  mere 
promise  without  other  quid  pro  quo;  that  the  seller  does 
not  become  the  owner  of  the  purchase  price  and  the  buyer 
does  not  hold  it  as  a  debt  due  the  seller  until  the  seller  has 
performed  the  consideration  for  which  the  buyer  has 
promised  to  pay;  that  is,  until  the  buyer  has  become 
the  owner  of  the  property  contracted  about.  Another 
position  is  that  the  buyer  has  not  even  undertaken  to 
pay  the  purchase  price  until  he  shall  have  acquired  the 
title. 

Mr.  Justice  Holmes  has  expressed  the  latter  idea  as  a 
dictum,  thus  :^^  "In  an  ordinary  contract  of  sale  the 
payment  and  the  transfer  of  the  goods  are  to  be  con- 
current acts,  and  if  the  buyer  refuses  to  accept  the  goods, 
even  wrongfully,  he  can  not  be  sued  for  the  price,  because 
the  event  on  which  he  undertook  to  pay  the  price  has  not 
happened;  and  although  the  fact  that  it  has  not  hap- 

the  goods  will  not  necessarily  af-  of  this  whole  matter  see  the 
feet  the  title,  which  is  already  in  article  in  17  Mich.  L.  R.  283. 
him.  The  seller  is  entitled  to  the  18— Ames,  8  Harvard  L.  R.  252; 
purchase  price  regardless  of  the  Street,  Foundation  of  Legal  Li- 
buyer's  refusal  to  accept  posses-  ability.  Vol.  II,  ch.  11. 
sion  of  the  goods  themselves.  19 — White  v.  Solomon,  164  Mass. 
For  a  more  detailed  discussion  516, 


94  THE  LAW  OF  SALES 

pened  is  due  to  his  own  wrong,  still  he  has  not  promised 
to  pay  the  price  in  the  present  situation,  but  must  be 
sued  for  his  breach  of  contract  in  preventing  the  event 
on  which  the  price  would  be  due  from  coming  to  pass. 
The  damages  for  such  a  breach  would  necessarily  be 
diminished  by  the  fact  that  the  vendor  still  had  the  title 
to  the  goods." 

A  seller,  therefore,  who  still  has  title  to  the  goods  is 
not  himself  entitled  to  the  purchase  price.  He  can  sue 
only  for  damages  for  breach  of  contract,  and  in  such 
case  his  damage  is  not  necessarily  the  agreed  price,  but 
is  the  difference  between  that  price  and  the  market  value 
of  the  chattel  which  he  still  ovms.  Thus  in  Acme  Food 
Co.  V.  Older,'^"  the  defendant  had  contracted  to  buy  of 
the  plaintiff  6,000  pounds  of  a  certain  prepared  poultry 
food.  The  plaintiff  set  aside  a  proper  amount  for 
the  defendant,  but  before  he  could  ship  it  to  the  defend- 
ant— which  would,  under  the  established  rules,  have 
passed  title — the  defendant  repudiated  his  agreement. 
The  plaintiff  shipped  nevertheless,  but  it  was  held  too 
late  then  to  pass  title  and  although,  on  defendant's 
refusal  to  receive  the  goods  or  to  pay  for  them,  plaintiff 
sued  for  the  whole  agreed  price,  his  recovery  was  limited 
to  the  difference  between  the  purchase  price  and  the 
market  value.''* 

20—64  W.  Va.  255,  17  L.  R.  A.  v.  Grewer,   83   Me.   407;    Jones  v. 

(n.  s.)  807.  Jennings  Bros.,  168  Pa.  493;  Ridg- 

21— Bary  v.  Quimby,  206  Mass.  ley  v.  Mooney,  16  Ind.  Ap.  362; 
259;  Internatl.  Textbook  v.  Mar-  Massman  v.  Steiger,  79  N.  J.  L. 
tin,  166  Mich.  660;  Manhattan  442,  75  Atl.  746;  Atkinson  v.  Bell, 
City  R.  R.  Co.  v.  Genl.  Elec.  Co.,  8  Barn.  &  Cr.  277;  Girard  v.  Tag- 
226  Fed.  173;  Gammage  v.  Texas,  gart,  5  Serg.  &  R.  (Pa.)  19,  "The 
14  Tex.  413;  Funke  v.  Allen,  54  damages  recovered  are  not  the 
Neb.  407,  overruling  a  contrary  price  of  the  goods  sold,  but  a  com- 
dictum  in  Lincoln  Shoe  Co.  v.  Shel-  pensation  for  the  disaflBrmance  of 
don,  44  Neb.  249;  McCormick  Har-  the  contract — Properly  speaking, 
vesting  Co.  v.  Balfany,  78  Minn,  the  seller  can  not  recover  the  price 
370,  74  Am.  St.  373;  Deere  v.  Gor-  — he  recovers  damages  for  the 
man,  9  Kan.  App.  G7.^>;  Singer  Mfg.  breach  of  a  contract  which  was  en- 
Co.  V.  Cheney,  21  Ky.  L.  R.  H.^'jO;  tirely  executory  when  it  was 
Moody  V.  Brown,  34  Me.  107;  Tufts  broken." 


THE  SELLER'S  RIGHTS  95 

But  even  assuming  that  the  seller's  mere  promise  to 
pass  the  title  does  not  create  a  debt  on  the  buyer's  part, 
a  question  at  once  arises  as  to  whether  after  the 
buyer's  refusal  to  proceed  with  the  contract,  the  seller 
can  thrust  the  title  upon  liim  nevertheless,  and  thus  by 
his  o'svn  act  make  himself  entitled  to  the  whole  sum  wliich 
the  buyer  has  promised  for  the  title.  There  is  much  con- 
flict upon  this  point,  although  the  best  supported  rule 
and  the  soundest  logically  is  that  he  can  not  do  so,  but 
is  only  entitled  to  recover  the  damage  he  has  suffered 
because  of  the  buyer's  refusal  to  take  the  title. 

Thus,  in  the  case  of  Acme  Food  Co.  v.  Older,  just 
referred  to,^^*  the  court  said  of  the  conflict,  '*It  is  some- 
times said  that  the  vendor  in  an  executory  contract  of 
sale,  has,  on  the  refusal  of  the  vendee  to  accept  the 
property,  an  election  as  to  whether  he  Avill  treat  it  as 
his  o^Ti  and  sue  for  damages  for  the  breach,  or  treat  it 
as  that  of  the  purchaser  and  sue  for  the  price.  *  *  *  The 
classification  of  cases  made  by  the  text-writers  is,  in 
some  instances,  inaccurate.  The  writers  seem  not  to 
have  observed  in  all  instances  the  distinctions  and  tests 
above  mentioned.  In  other  words,  they  have  frequently 
classed  cases  in  which  the  title  had  passed,  or  in  wliich 
there  was  evidence  from  which  the  jury  might  have 
found  the  fact,  as  cases  in  which  it  had  not  passed.  In 
other  instances  they  have  failed  to  observe  that  the 
executory  contract  had  become  executed  so  as  to  pass  the 
title  before  any  renunciation  was  made  by  the  vendee. 
Indeed,  there  are  very  few  cases  in  which  the  seller  has 
been  allowed  to  recover  the  purchase  price  when  the  title 
to  the  property  had  not  passed  to  the  buyer.  The  doc- 
trine of  election,  when  the  title  has  not  passed,  seems 
to  have  groA\Ti  out  of  an  unfortunate  and  inaccurate  inter- 
pretation of  certain  cases  made  by  Mr.  Sedgwick  in  his 
work  on  Damages."^* 

21a — 64  W.  Va.  255,  17  L.  R.  A.      ity,    the   cases   cited   under    note 

(n.  s.)  807.  21.      "To   allow   the    seller   to   re- 

22 — See,  for  supporting  autlior-     cover  the  full  purchase  price  of  an 


96  THE  LAW  OF  SALES 

The  doctrine  of  election  which  the  court  criticizes  and 
denies,  whereby  the  seller  may,  if  he  choose,  thrust  the 
title  upon  the  buyer  against  his  will,  is,  however,  widely 
supported  by  dicta  at  least.  These  authorities  declare 
that  a  seller  who  has  done  all  that  he  is  obligated  to  do 
by  the  contract  may  sue  for  the  purchase  price  even 
though  the  buyer  has  refused  to  accept  the  title.  They 
do  not  indicate  with  any  certainty  whether  the  seller  is 
allowed  to  sue  on  the  theory  that  title  has  passed  to  the 
buyer  despite  his  refusal  of  it,  or  on  the  theory  that 
title  need  not  be  in  the  buyer  in  such  cases.  The  evi- 
dence seems  to  point  to  the  former. 

Very  little  of  this  dictum,  however,  is  real  authority; 
that  is  to  say,  it  is  dictum  simply.  The  proposition  is 
usually  expressed  in  some  form  of  the  words  formu- 
lated originally  in  Dustan  v.  McAndrew,^^  namely,  ' '  The 
vendor  of  personal  property  in  a  suit  against  the  vendee 
for  not  taking  and  paying  for  the  property  has  the  choice 
ordinarily  of  either  one  of  three  methods  to  indemnify 
himself.  (1)  He  may  store  or  retain  the  property  for 
the  vendee,  and  sue  him  for  the  entire  purchase  price, 
(2)  He  may  sell  the  property,  acting  as  the  agent  for 
this  purpose  of  the  vendee,  and  recover  the  difference 
between  the  contract  price  and  the  price  obtained  on  such 
resale;  or,  (3)  he  may  keep  the  property  as  his  own,  and 
recover  the  difference  between  the  market  price  at  the 
time  and  place  of  delivery,  and  the  contract  price." 

This  statement  is  widely  quoted.  As  a  matter  of  fact, 
however,  it  is  seldom  the  basis  of  a  holding  that  the 
seller  can  sue  for  the  purchase  price  when  the  buyer 
has  refused  to  accept  the  title.    The  case  in  which  it  was 

article,  and  compel  the  buyer  to  the   buyer.     This   is   against  the 

accept  it  whether  he  wants  it  or  well      established      doctrines      of 

not,  is  to  grant  specific  perform-  courts   of   equity,"    from    Manhat- 

ance  of  a  contract  for  the  sale  of  tan  City  Ry.  v.  Genl.  Elec.  Co.,  226 

personal  property  in  favor  of  the  Fed.  173. 

seller,  when  no  such  relief  could  23 44  n.  Y.  72. 

or  would  be  granted  in  favor  of 


THE  SELLER'S  RIGHTS  97 

thus  first  stated  was  not,  itself,  a  suit  for  the  purchase 
price;  it  was  only  an  action  for  damages  for  breach  of 
contract.  Of  the  two  cases  cited  as  authority,  one  was 
an  action  for  damages  only,  and  in  the  other  the  title  had 
clearly  passed,  in  accordance  with  the  established  rules 
of  presumption,  and  the  buyer's  refusal  was  not  a  refusal 
to  take  the  title,  but  to  pay  the  price.  This  statement 
of  the  three  possible  remedies  in  cases  where  it  is  wholly 
unrelated  to  the  decision,  because  the  suit  is  actually 
for  damages  for  refusal  to  accept  and  not  for  the  pur- 
chase price,  is  common.'^* 

The  statement,  as  wholly  extraneous  and  immaterial 
matter,  is  found  also  in  cases  in  which  title  has  passed 
according  to  the  established  rules,  and  the  buyer's 
refusal  is  to  receive  the  goods  themselves,  not  the  title, 
and  to  pay  the  price.^^ 

In  other  cases  the  extraneous  statement  is  made  that 
recovery  of  the  purchase  price  ivould  have  been  allowed, 
despite  the  buyer's  refusal  to  accept  the  title,  if  some- 
thing else,  such  as  the  seller's  failure  to  make  tender, 
had  not  been  present  to  prevent  it.^^ 

In  some  cases,  however,  the  statement  is  actually  the 
principle  of  the  holding,  and  a  seller  has  been  permitted 
to  recover  the  purchase  price  for  goods  sold  although 
title  has  been  refused  by  the  buyer.  In  other  words,  he 
has  been  allowed  to  thrust  the  title  upon  the  buyer  and 
thus  entitle  himself  to  the  amount  of  the  price.'^'* 

24— Habeler  v.  Rogers,  131  Fed.         25— Ames  v.  Moir,  130  HI.  582. 
43;    Kinkead   v.   Lynch,   132   Fed. 


26 — Moline    Scale    Co.    v.    Beed, 
52  Iowa  307. 


692;  Krebs  Hop  Co.  v.  Livesley,  59 
Ore.  574;  Range  Co.  v.  Mercantile 

Co.,  120  Mo.  Ap.  438;  Van  Brock-  27— Crown  Vinegar  &  Spice  Co. 

len  V.  Smeallie,  140  N.  Y.  70;  Com-  v.  Wehrs,  59  Mo.  Ap.  493;  Walker 

stock    V.    Price,    103    111.    Ap.    19;  v.  Nixon,  65  Mo.  Ap.  326. 

Magnes  v.  Sioux  City  Co.,  14  Colo.  Walker    Bros.    v.    Daggett,    115 

Ap.    219;     Trunkey    v.    Hedstrom,  Miss.  657,  76  So.  569. 

131  111.  204,  action  in  damages  by  Osgood  v.  Skinner,  211  IH.  229; 

buyer    for    seller's    failure    to   de-  Resetter  v.  Reynolds,  160  Ind.  133; 

liver.  McCornrick     Co.    V.     Market,     107 

•See  Uniform  Sales  Act,  Section  63,  (2),  (3),  64,  (4). 


98 


THE  LAW  OF  SALES 


From  the  foregoing  discussion  it  is  apparent  that  the 
right  of  a  seller,  who  has  not  passed  title,  to  sue  for  the 
purchase  price  in  case  the  buyer  refuses  to  take  title  is 
not  settled  either  way. 


Iowa  340;  Busch  v.  Stromberg- 
Carlson  Co.,  226  Fed.  200. 

It  is  so  provided  by  statute  in 
some  states. 

The  cases  of  Frisch  v.  Wells, 
200  Mass.  429;  Bond  v.  Bourk,  54 
Colo.  51,  and  Smith  v.  Aldrich,  180 
Mass.  367,  seem  to  have  been  de- 
cided on  the  principle  that  the 
seller  could  treat  title  as  being  in 
the  buyer  without  his  consent.  The 
same  result  might  have  been 
reached,  however,  more  harmoni- 
ously upon  the  principle  of  a 
promise  to  pay  before  title  passed, 
as  set  out  below. 

The  cases  of  Bement  v.  Smith, 
15  Wend.  493  and  Shawhan  v.  Van 
Nest,  25  O.  S.  490,  18  Am.  Rep. 
313,  are  often  treated  as  author- 
ities for  the  proposition  that  a 
seller  may  sue  for  the  purchase 
price  even  though  the  buyer  has 
refused  to  accept  the  title.  In  the 
former  case  (and  the  latter  is  sub- 
stantially the  same)  plaintiff  con- 
tracted to  build  for  the  defendant 
a  sulky  according  to  certain  de- 
scription, for  a  price  of  $80.  When 
the  work  was  done  and  the  sulky 
offered  to  the  defendant  he  re- 
fused to  receive  it.  The  plaintiff 
thereupon  stored  it  with  a  neigh- 
bor for  the  defendant,  and  brought 
suit  for  the  $80.00.  His  declara- 
tion contained  a  count  for  work 
and  labor  and  one  for  goods  sold. 
The  defense  was  that  he  was  en- 
titled to  damages  only.  The  posi- 
tion taken  by  the  court  was  simply 
that  the  plaintiff  had  agreed  to 
make  and  deliver  a  certain  thing 
and  that  he  had  made  it  and  tend- 


ered delivery;  and  that  the  offer 
to  deliver  was  tantamount  to  de- 
livery. The  contract,  being  an 
agreement  for  a  thing  not  yet  in 
existence,  was,  the  court  said,  in 
accord  with  the  New  York  rule, 
not  a  contract  of  sale  but  one  for 
work  and  labor.  The  work  and 
labor  having  been  performed  the 
plaintiff  was  entitled  to  the  con- 
tract price.  It  was  not  necessary, 
the  court  added,  for  the  plaintiff 
to  have  declared  for  goods  bar- 
gained and  sold.  It  is  only  after 
this  ruling  that  the  court  remarks 
that  "where  there  has  been  a  valid 
contract  of  sale,  the  vendor  is  en- 
titled to  the  full  price,  whether  the 
vendee  receive  the  goods  or  not. 
1  can  not  see  why  the  same  prin- 
ciple is  not  applicable  in  this 
case."  The  quid  pro  quo  which 
entitled  the  plaintiff  to  the  debt 
was  thus  obviously  not  the  trans- 
fer of  the  title,  but  the  actual  per- 
formance of  agreed  labor.  This 
Interpretation  is  strengthened  by 
Higgins  V.  Murray,  73  N.  Y.  252. 
This  was  a  contract  to  manufac- 
ture circus  tents.  When  they  were 
completed  and  offered  to  defend- 
ant he  refused  to  accept  them. 
The  maker  sued  to  recover  the 
price.  (4  Hun.  565)  The  court 
held  the  contract  to  be  one  for 
work  and  labor  (which  would, 
therefore,  be  a  quid  pro  quo  for 
the  debt)  and  that,  consequently, 
the  right  to  recover  the  price  "did 
not"  depend  on  where  the  tech- 
nical title  is,  as  "in  the  sale  of 
goods." 


A    I  U  T^ 

THE  SELLER'S  RIGHTS  99 

2.     Title  Retained,  but  Possession  Passed 

Breach  of  Contract. — Where  the  seller  has  passed  the 
possession  to  the  buyer,  even  though  it  is  agreed  that 
title  shall  not  pass  to  the  buyer  until  payment  has  been 
made,  the  seller  can  still  sue  for  damages  for  breach  of 
contract  in  case  the  buyer  fails  to  pay  as  agreed. 

Recovery  of  Purchase  Price. — But  in  such  cases  he 
may  also  sue  the  buyer  for  the  agreed  price  itself,  as  dis- 
tinct from  suing  to  recover  damages.  This  is  different 
from  the  majority  rule  in  cases  where  the  seller  has 
parted  with  neither  possession  nor  title,  as  just  dis- 
cussed. The  reason  for  this  difference — that  is,  the  rea- 
son why  he  can  sue  for  the  price  despite  his  retention  of 
title  if  he  has  given  possession,  but  can  not  sue  for  it  if 
he  has  not  given  possession — is  not  clear. 

The  logical  reason  would  be  that  the  seller  in  giving 
possession  to  the  buyer  has  given  him  a  quid  pro  quo  by 
whith  the  debt  of  the  buyer  is  created.  This  is  the 
theory  which  the  courts  have  expressly  stated  in  many 
instances.^' 

28— This  is  very  obvious  in  the  fault  of  either  party.    The  seller 

case  of  Burnley  v.  Tufts,  66  Miss,  sued  to  recover  the  unpaid  part 

48.     Tufts  had  sold  to  Burnley  a  of  the  purchase  price  and  was  held 

soda  water  apparatus,  with  the  ex-  entitled  to  the  money.    The  court's 

press  stipulation  that  title  should  opinion  shows  that  possession  was 

not  pass  until  the  price  had  been  the  consideration  for  the  buyer's 

paid,  and  that  if  the  payment  were  promise  to  pay,  and  not  title,  and 

not  made  at  the  times  the  install-  that  this  consideration  had  been 

ments  were  stated  to  be  due  the  executed.      "Burnley,"     said    the 

seller  might  retake  possession  of  court,  "unconditionally  and  abso- 

the  apparatus.    It  does  not  appear  lutely  promised  to  pay  a  certain 

that  there  was  any  stipulation  that  sum  for  the  property,  the  posses- 

the  buyer  should  have  possession  sion  of  which  he  received   from 

till  payment  or  default,  but  that  Tufts.    The  fact  that  the  property 

was   obviously   the   intent   of  the  has  been  destroyed  while   in  his 

parties.     The   apparatus  was   de-  custody  and  before  the  time  for 

stroyed  by  fire,  after  several  pay-  the  payment  of  the  last  note  due, 

ments   had   been   made,   while   in  on    payment    of    which    only    his 

the  buyer's  possession  but  without  right  to  the  legal  title  of  the  prop- 


100 


THE  LAW  OF  SALES 


In  other  instances  the  seller  has  maintained  his  suit 
for  the  price  without  the  court's  having  indicated  any 
reason  why  he  could  do  so.  It  may  be  that  these  courts 
have  felt  simply  that  the  promise  to  pay,  itself,  created  a 
debt  and  no  executed  consideration,  or  quid  pro  quo,  was 
necessary.    Or  it  may  have  been  that  inasmuch  as  pos- 


erty  would  have  occurred  does  not 
relieve  him  of  payment  of  the 
price  agreed  upon.  He  got  ex- 
actly what  he  contracted  for,  viz., 
the  possession  of  the  property  and 
the  right  to  acquire  an  absolute 
title  by  payment  of  the  agreed 
price.  The  transaction  was  some- 
thing more  than  an  executory  con- 
ditional sale.  The  seller  had  done 
all  that  he  was  to  do  except  to  re- 
ceive the  purchase  price;  the  pur- 
chaser had  received  all  that  he 
was  to  receive  as  the  considera- 
tion of  his  promise  to  pay."  In 
White  V.  Solomon,  164  Mass.  516, 
the  buyer  had  even  refused  to  take 
possession  of  the  chattel.  Before 
his  refusal,  however,  the  seller 
had  delivered  it  to  an  express 
company  for  carriage  to  the  buyer. 
The  buyer's  contract  provided  that 
"in  consideration  of  its  delivery 
for  me,  freight  prepaid,  at  the  ex- 
press office  specified  below,  I 
promise  to  pay  the  sum  of  (the 
purchase  price)."  The  court 
stated  the  general  rule,  that  a 
seller  who  still  retains  title,  even 
though  only  because  of  the  buyer's 
refusal  to  accept  it,  is  not  entitled 
to  the  purchase  price  but  only  to 
damages.  But  it  then  went  on  to 
decide  that  "in  the  case  at  bar  the 
buyer  has  said  in  terms,  that  al- 
though the  title  does  not  pass  by 
the  delivery  to  the  Express  Com- 
pany, if  it  does  not,  delivery  shall 
be  the  whole  consideration  for  an 
Immediate  debt  (partly  solvendum. 


in  futuro)  of  the  whole  value  of 
the  manikin,  and  that  the  passing 
of  the  title  shall  come  as  a  future 
advantage  to  him  when  he  has 
paid  the  whole.  The  words  (in  the 
contract)  'in  consideration  of  its 
delivery'  are  not  accidental  nor 
insignificant.  *  *  *  if  a  man  is 
willing  to  contract  that  he  shall  be 
liable  for  the  whole  value  of  a 
chattel  before  the  title  passes, 
there  is  nothing  to  prevent  his  do- 
ing so,  and  thereby  binding  him- 
self to  pay  the  whole  sum.  *  *  * 
When,  as  here,  all  the  conditions 
have  been  complied  with  the  per- 
formance of  which  by  the  terms  of 
the  contract  entitles  the  vendors 
to  the  whole  sum,  if  the  vendors 
afterward  have  not  either  broken 
the  contract  or  done  any  act 
diminishing  the  rights  given  them 
in  express  words,  the  buyer  can 
not  by  an  act  of  his  own  repudiat- 
ing the  title  gain  a  right  of  re- 
coupment, or  otherwise  diminish 
his  obligation  to  pay  the  whole 
sum  which  he  has  promised." 

Accd.,  Natl.  Cash  Register  Co.  v. 
Hill,  136  N.  C.  272,  68  L.  R.  A. 
100,  similar  to  White  v.  Solomon, 
and  quoting  it  with  approval; 
Tufts  V.  Griffin,  107  N.  C.  47,  fol- 
lowing Tufts  V.  Burnley;  Natl. 
Cash  Register  Co.  v.  Dehn,  139 
Mich.  406;  Bierce  v.  Hutchins.  205 
U.  S.  340;  Gray  v.  Booth,  64  N.  Y. 
App.  Div.  231;  Amer.  Soda  Foun- 
tain Co.  V.  Vaughn,  69  N.  J.  L.  582, 
"The  question   to  be   determined 


THE  SELLER'S  RIGHTS 


101 


session  was  already  with  the  buyer  the  seller  could,  by 
bringing  his  suit  for  the  price,  elect  to  pass  the  title  to 
the  buyer  and  that  the  buyer  by  not  actively  rejecting  it 
would  be  presumed  to  have  consented  to  it.  This  passage 
of  title  would  then,  of  course,  be  the  necessary  executed 
consideration.*® 


is:  What  was  the  consideration 
of  the  note?  If  the  passing  of  the 
title  to  the  apparatus  was  the  con- 
sideration, the  defense  must  pre- 
vail. If  the  delivery  of  the  appar- 
atus, with  the  right  to  acquire 
title,  was  the  consideration  the 
plaintiff  must  prevail.  We  think 
the  consideration  for  the  note  was 
the  delivery  of  the  apparatus  with 
the  right  to  acquire  title."  Lan- 
caster V.  Southern  Insurance  Co., 
153  N.  C.  285;  Harley  v.  Stanley, 
25  Okla.  89;  Roach  v.  Whitfield, 
94  Ark.  448;  Lavalley  v.  Ravenna, 
78  Vt.  152;  Dunlap  v.  Grote,  2  C. 
&  K.  153;  Boyer  v.  Ausburn,  64 
Ga.  271,  express  agreement  to  pay 
In  event  of  loss;  Dederick  v. 
Wolfe,  68  Miss.  500;  Hollenberg 
V.  Barron,  100  Ark.  403,  even 
though  seller  had  retaken  posses- 
sion at  time  of  the  sale;  Marion 
Mfg.  Co.  v.  Buchanon,  118  Tenn. 
238;  Whitlock  v.  Auburn  Lumber 
Co.,  145  N.  C.  120,  12  L.  R.  A. 
(n.  s.)  1214;  Kilmer  v.  Money- 
Weight  Scale  Co.,  36  Ind.  Ap.  568. 

29 — A  number  of  courts,  appar- 
ently considering  that  the  promise 
to  pass  title  is  the  real  considera- 
tion, refuse  to  allow  the  seller  to 
recover  the  purchase  price  after 
the  goods  have  been  destroyed. 

Bishop  V.  Minderhout,  128  Ala. 
162,  predicated  upon  the  principle 
that  the  risk  of  loss  follows  title; 
Randle  v.  Stone,  77  Ga.  501; 
Swaney  v.  Alstott,  134  Iowa  63,  7 
L.  R.  A.   (n.  s.)    1032;    Glisson  v. 


Heggie  Bros.,  105  Ga.  30;  Tabbut 
V.  American  Insurance  Co.,  185 
Mass.  419,  allowing  the  conditional 
buyer  to  recover  from  an  insur- 
ance company  only  the  value  of 
his  interest  in  the  chattel  and  not 
the  full  value.  Sloan  v.  McCarty, 
134  Mass.  245.  Worden  Grocery 
Co.  V.  Blanding,  161  Mich.  254,  126 
N.  W.  212,  holding  a  note  given 
for  the  price,  on  a  conditional  sale, 
not  negotiable  because  the  buyer 
would  not  be  liable  if  the  seller 
could  not  pass  title;  Fleming  v. 
Sherwood,  24  N.  D.  144,  43  L.  R. 
A.  (n.  s.)  945,  idem. 

Some  courts  have  held  that 
notes  given  for  the  contract  price 
in  conditional  sale  agreements  are 
not  negotiable  because  of  uncer- 
tainty in  the  obligation  of  pay- 
ment. This  uncertainty  of  obliga- 
tion is  not,  however,  clearly  predi- 
cated upon  possibility  that  the 
buyer  might  not  be  liable.  Rather, 
it  seems  to  be  based  on  the  fact 
that  the  seller  may  not  choose  to 
hold  him  to  payment,  but  may 
elect  to  retake  the  chattel.  So 
long  as  the  seller  has  the  option, 
to  demand  payment  on  default  or 
to  retake  the  property,  it  is  clear 
that  the  obligation  to  pay  is  not 
certain;  the  buyer  may  have  to 
pay  or  not  as  the  seller  chooses. 
These  cases  do  not,  therefore,  in- 
dicate that  the  buyer  is  not  liable 
for  the  full  purchase  price  re- 
gardless of  title. 

Bannister    v.    Rouse,    44    Mich. 


102  THE  LAW  OF  SALES 

But  whatever  the  reason,  it  seems  clear  that  a  seller 
who  has  given  possession  to  the  buyer  is  not  restricted 
to  a  recovery  of  damage  for  the  buyer's  failure  to  pay, 
but  can  bring  suit  for  the  whole  agreed  price. 

Titular  Actions. — Despite  the  fact  that  he  can  thus 
sue  for  the  purchase  price,  and  although  he  has  parted 
with  possession,  the  seller,  because  he  has  retained  title, 
is  still  the  owner  in  practically  every  respect.  So  long 
as  the  buyer  has  possession  the  seller  can  not  prevent 
title  from  passing  to  him  on  performance  of  the  condi- 
tion. In  this  respect  the  seller's  absolutism  of  owner- 
ship is  limited.^® 

In  other  respects  the  seller  is  the  owner  of  the  prop- 
erty. He  can  sell  or  otherwise  transfer  his  right  in  the 
goods  to  others.^^  He  can  himself  maintain  a  titular 
action  against  a  third  person.^^ 

Recovery  of  Possession. — Being  owner,  he  can  retake 

possession  from  the  buyer  or  anyone  holding  under  him. 
If  the  buyer's  contract  provides  that  he  shall  have  pos- 
session so  long  as  he  is  not  in  default,  the  seller  can  not 
retake  possession  before  default.^'  But  if  ,the  buyer  is 
in  default  the  seller  can  retake  possession,  whether  the 
contract  expressly  gives  him  that  right  or  not.^* 

428;  Chicago  Ry.  Co.  v.  Merchants  481,    51    Am.    St.    37;    see    other 

Bank,  136  U.  S.  268;  but  cf.  Third  authorities  cited  in  re  the  rights 

Natl.  Bk.  V.  Armstrong,  25  Minn  of  third  persons. 

530;    Iron    Wks.    v.    Paddock,    37  33— Post,  p.  176. 

Kan.  510.  34— Wiggins  v.  Snow,  89  Mich. 

30 — See    discussion    of    Buyer's  476,  even  without  such  provision 

Rights,  post,  p.  176.  in  the  contract;  Ryan  v.  Wayson, 

31— Everett  v.  Hale,  67  Me.  497,  108    Mich.    519,    idem;    Tufts    v. 

payments  by  buyer  to  the  seller  D'Arcambal,  85  Mich.  185,  24  Am. 

are    ineffective   after   notice    that  St.   79;    Hegler  v.   Eddy,   53    Cal. 

seller  has  transferred  the  title  to  579;    Gerow   v.   Castello,   11   Colo, 

another;  BumeU  v.  Marvin,  44  Vt.  560,  7  Am.  St.  260;   Smith  v.  Guf- 

277,    transferee    can    maintain    a  ford,  36  Fla.  481,  51  Am.   St.   37, 

trover  action;  Foundry  Co.  V.  Pas-  18   So.   717;    Perkins   v.   Grobben, 

cagoula  Co.,  72  Miss.  608.  116  Mich.  172;  Turk  v.  Carnahan, 

32— Smith    v.    Gufford,    36    Fla.  25    Ind.    Ap.    125;     Crompton    V. 


THE  SELLER'S  RIGHTS 


103 


There  is  strong  authority  that  the  seller  may  even  use 
such  force  as  is  necessary  to  retake  possession,  subject, 
however,  to  criminal  liability  for  breach  of  the  peace. 
There  is  conflict  in  this  regard,  however.®^ 

Furthermore,  where  the  contract  provides,  either 
expressly  or  by  implication,  that  the  seller  may  retake 
possession  in  case  of  default,  he  may  do  so  without  first 
giving  back  what  he  has  received  from  the  buyer.^^ 

After  Suit  for  the  Purchase  Price. — This  ris:ht 


of  the  seller  to  retake  possession  if  the  conditional  buyer 
makes  default  may,  or  may  not,  be  affected  by  his  having 


Beach,  62  Conn.  25;  Segrist  v. 
Crabtree,  131  U.  S.  287;  Seanor 
V.  McLaughin,  165  Pa.  150;  Walsh 
V.  Taylor,  39  Md.  598;  Palmer  v. 
Kelly,  56  N.  Y.  637,  buyer  had 
failed  to  keep  property  insured  as 
contract  provided. 

35— W.  T.  Walker  Furniture  Co. 
V.  Dyson,  32  App.  D.  C.  606,  19 
L.  R.  A.  (n.  s.)  606,  annotated. 

36— Tufts  V.  D'Arcambal,  85 
Mich.  185,  24  Am.  St.  79;  Perkins 
V.  Grobben,  116  Mich.  172;  Cromp- 
ton  V.  Beach,  62  Conn.  25;  Lippin- 
cott  V.  Rich,  22  Utah,  195;  Duke 
V.  Shackleford,  56  Miss.  552; 
Pfeifer  v.  Norman,  22  N.  D.  168, 
38  L.  R.  A.  (n.  s.)  891;  Raymond 
Co.  V.  Kahn,  124  Minn.  426;  Fair- 
banks V.  Malloy,  16  111.  Ap.  277, 
because  the  retaking  is  not 
strictly  a  rescission.  Fleck  v. 
Warner,  25  Kan.  492;  Hawkins  v. 
Hersey,  86  Me.  394,  even  in  an  ac- 
tion for  trover.  Even  in  an  action 
for  conversion  by  a  third  person, 
in  privity  with  the  buyer,  the  de- 
fendant can  not  set  off  payments 
made  and  the  seller  is  entitled  to 
the  full  value  of  the  chattel, 
Lorain  Steel  Co.  v.  Norfolk,  etc. 
Ry.  Co.,  187  Mass.  500. 


Contra,  Hays  v.  Jordan,  85  Ga. 
741. 

Seller  need  not  give  up  notes 
received  for  future  payments, 
Kirby  v.  Tompkins,  48  Ark.  273; 
Hoe  V.  Rex  Mfg.  Co.,  205  Mass. 
214. 

This  right  to  retake  possession 
without  returning  what  the  buyer 
has  paid  has  been  changed  by 
statute  in  some  states. 

By  thus  retaking  possession 
without  refunding  money  paid  the 
seller  does  not  necessarily  put  an 
end  to  the  contract.  Tufts  v. 
D'Arcambal,  85  Mich.  185,  24  Am. 
St.  79. 

If  the  seller  does  intend  by  his 
retaking  of  possession  to  rescind 
the  contract,  it  appears  that  the 
buyer  may  then  sue  to  recover  the 
money  he  has  paid.  Miller  v. 
Steen,  30  Cal.  402,  "If  the  con- 
tract has  been  rescinded,  the 
plaintiffs  (buyers)  are  entitled  to 
recover  the  money  paid.  If  the 
contract  was  not  rescinded,  the 
vendees  became  entitled  to  the 
possession  upon  payment  of  the 
full  amount  due." 

See  further,  post,  p.  103. 


104  THE  LAW  OF  SALES 

first  brought  suit  for  tlie  purchase  price.  The  courts 
are  anything  but  harmonious  in  regard  to  it.  If  the 
right  to  sue  for  the  purchase  price  is  itself  based,  as 
we  have  seen  that  many  courts  do  base  it,  on  the 
assumption  that  possession  until  default  is  the  quid 
pro  quo  for  the  promise  to  pay  the  price,  and  that  title 
was  not  to  pass  till  after  payment,  then  title  should  not 
pass  merely  because  a  suit  for  the  price  has  been  started, 
or  a  judgment  secured.  Title,  then,  being  still  in  the  seller 
and  the  condition  on  which  the  buyer's  possession 
depends  having  been  broken,  there  is  no  logical  reason 
why  the  seller  should  not  be  allowed  to  retake  possession. 
Many  courts  do  hold,  for  one  reason  or  another,  that  the 
seller  is  not  precluded  from  retaking  possession  merely 
because  he  has  started  a  suit,  or  even  secured  a  judg- 
ment, for  the  purchase  price.*'' 

Courts  which  put  the  seller 's  right  to  sue  for  the  price, 
as  such,  instead  of  for  damages,  on  the  theory  that  he 
has  elected  to  pass  title  to  the  buyer,  do  not,  as  a  rule, 
allow  the  seller  to  retake  possession  after  such  a  suit, 
even  though  the  judgment  has  not  been  satisfied.  Logi- 
cally, having  passed  title,  the  seller  has  lost  his  right  to 
repossession.*^ 

37— Matthews  v.  Lucia,   55  Vt.  Co.,    244   Fed.    730,    holding   that 

308;    Fuller  v.    Byrne,    102   Mich,  right  to  possession  had  not  been 

461;     Canadian    Co.    v.    Macgurn,  lost  by  prior  action  in  equity  for 

119  Mich.  533;  Campbell,  etc.  Co.  declaration   of  a  lien   in   seller's 

V.  Rockaway  Co.,  56  N.  J.  L.  676,  favor;  Ratchford  v.  Cuyahoga,  etc. 

distinguishing  Heller  v.  Elliott,  44  Co.,  145  N.  Y.  S.  83,  seller  not  pre- 

N.  J.  L.  467,  on  the  point  that  in  eluded  by  suit  for  part  of  price 

the    latter    case    the    seller    had  from  setting  up  title  as  against  a 

levied  upon  the  goods,  under  his  mortgagee  of  the  buyer;    Hobart 

judgment,    as    being    the    buyer's  Elec.  Co.  v.  Rooder,  121  N.  Y.  S. 

property;    Forbes    Co.   v.   Wilson,  274,  suit  for  part  of  price  does  not 

144  Ala.  586,  overruling  a  contrary  preclude     action     in     conversion 

dictum  In  Davis  v.  Millings,  141  against  buyer. 

Ala.  378;  Thomason  v.  Lewis,  103  38— Turk   v.   Carnahan,   25   Ind. 

Ala.    426;    Rossiter   v.    Merriman,  App.  125;   Crompton  v.  Beach,  62 

80  Kan.  738,  analogy  of  suit  on  a  Conn.  25;  Frisch  v.  Ells,  200  Mass. 

note  as  not  releasing  a  mortgage.  429;   Bailey  v.  Hervey,  135  Mass. 

Cf.  Meyer  v.  Pacific  Machinery  172;    Francis  v.   Bohart,  —  Ore. 


THE  SELLER'S  RIGHTS  105 

In  other  cases  repossession  by  the  seller,  after  suit  for 
the  price,  is  denied  without  statement  of  any  definite 
theory.*® 

A  way  of  escape  for  the  seller  from  this  proposition 
that  if  he  brings  suit  for  the  price  he  forfeits  his  right 
to  retake  possession  even  though  the  judgment  is  not  sat- 
isfied, is  suggested  in  Fuller  v.  Byrne.*''  The  contract 
there  provided  that  title  should  not  pass  to  the  buyer 
until  pajTuent  or  until  satisfaction  of  any  judgment  recov- 
ered. The  court  held  that  suit  for  the  price  and  an  unsat- 
isfied judgment  did  not  preclude  the  seller  from  retaking 
possession.*^  The  decision  must  mean  that  this  court 
considers  the  passing  of  title  to  be  an  effect  of  the  suit, 
but  not  a  condition  precedent  to  suit  for  the  price. 

A  suit  to  recover  installments  due  does  not  have  the 
same  effect  as  a  suit  to  recover  the  whole  price,  and  the 
seller  does  not,  in  most  jurisdictions,  lose  his  right  to 
retake  possession  because  of  a  suit  to  recover  install- 
ments.*^ 

L.  R.  A.  1916  A  922,  "An  action  Mchts.  etc.  Bk.  v.  Thomas,  62  Tex. 
for  the  purchase  price  of  the  prop-  237. 
erty  is  an  action  on  the  contract,  40 — 102  Mich.  461. 
and  necessarily  proceeds  upon  the  ^^_^^   ^^^   ^^3^^^^   ^^   ^^^^   ^ 
theory    that    the    title    has    been  provision,  an  unsatisfied  judgment 
waived  by  the  seller  and  vested  ^^^  ^^^  ^^^^^  ^^3  ^^1^  ^^  preclude 
in  the  buyer";  Parke  Co.  v.  White  repossession  by  the  seller  in  Bui- 
River  Co.,  101  Cal.  37,  suit  is  "a  ^^^  ^   ^j,^^^^^^  ^^  ^^^^   296. 
ratification    of    the     sale";     Holt  42_Haynes      v.      Temple,      198 
Mfg.   Co.  V.   Ewing,   109   Cal.   353,  ^^^^_     ^^^.     ^^^^^^^    ^^.^    ^.^^ 
an  "election  to  treat  the  transac-  ^^.^^^^  ^  ^^j^^^  200  Mass.  429,  23 
tion  as  an  absolute  sale."  ^   ^   ^    ^^    ^  ^  ^44^  ^^  ^^^  ^^^^^ 

39 — Seanor  v.   McLaughlin,   165  that  suit  for  the  whole  price  does 

Pa.   150;    Manson  v.   Dayton,   153  end    the    right    of    repossession. 

Fed.    258;     Ramey    v.    Smith,    56  Ratchfield  v.  Cayuga,  etc.  Co.,  145 

Wash.    604;    Chase   v.    Kelly,    125  N.   Y.    S.    83,   affirmed   217   N.    Y. 

Minn.  317,  dictum;  Bell  v.  Old,  88  565;  Silverstein  v.  Kohler,  58  Cal. 

Ark.    99;    Elwood    State    Bank    v.  Dec.  138.  183  Pac.  451. 

Mock,  40  Ind.  Ap.  685;   Button  v.  Contra.    Eilers  Music  House  v. 

Trader,   75    Mich.    295;    Dowagiac  Douglass,  90  Wash.  683,  L.  R.  A. 

Mfg.  Co.  V.  Mahon,  13  N.  D.  516;  1916  E.   613. 


106  THE  LAW  OF  SALES 
After  Other  Acts. — Even  in  jurisdictions  where 


suit  for  the  price  is  not  held  to  indicate  a  passing  of 
title  to  the  buyer,  the  seller's  intent  to  treat  it  as  having 
passed  may  be  shown  in  other  ways,  as  by  attaching  the 
goods,  or  levjdng  upon  them  as  the  property  of  the  buyer. 
When  he  has  so  elected  to  treat  them  as  the  property  of 
the  buyer  he  can  not  afterward  repudiate  that  election 
and  retake  possession.*^ 

Suit  for  Price  After  Retaking  Possession. — If  the 
seller,  instead  of  suing  for  the  price,  chooses  to  retake 
possession,  the  cases  are  well  agreed  that  he  loses  his 
right  to  sue  for  the  price.  The  theory  on  which  this  for- 
feiture of  the  price  is  based  is  not  so  well  settled,  how- 
ever. A  number  of  courts  put  it  on  the  ground  that  the 
seller's  right  to  retake  the  goods  is  by  way  of  rescinding 
the  contract.  Accordingly,  if  he  has  so  retaken  posses- 
sion, he  must  have  rescinded  and  there  is  in  consequence 
no  contract  on  which  he  can  bring  a  suit.  They  apply  this 
even  when  the  suit  is  on  a  promissory  note  given  for  the 
price.**    This  theory  is  hardly  consistent  with  the  rule 

43 — Elson  V.  Moore,  11  Cal.  Ap.  title  in  case  of  non-payment  or  to 

377,  suit  and  attachment;   HeUer  affirm   it   in   the   buyer.     In   such 

V.     Elliott,     44     N.     J.     L.     467,  case,  it  was  held,  suit  for  the  price 

levy;   Ramey  v.   Smith,  56  Wash,  was  an  affirmance  of  the  buyer's 

604,     levy;      Orcutt     v.     Ricken-  existing  but  voidable  title. 

brodt,   59   N.   Y.   S.   1008,   accept-  44— Glisson  v.  Heggie  Bros.,  105 

ance  of  a  promissory  note  as  pay-  Ga.  30.     In  Turk  v.  Carnahan,  25 

ment     of     the     price;     Fuller    v.  Ind.  Ap.  125,  the  court  expresses 

Eames,  108  Ala.  464,  attachment;  the   matter  thus:— "The  contract 

Albright  v.  Meredith,  58  O.  S.  194,  sued  on  is  a  conditional  one.    The 

levy.  condition  is  that  the  title  to  the 

Other     cases     may     be     distin-  property  sold,  as  described  in  the 

gulshed  on  various  grounds.  Thus  note,  shall  remain  in  the  vendors 

Moline   Plow   Co.   v.   Rodgers,   53  (appellees)     until    the     purchase 

Kan.  743,  37  Pac.  Ill,  appears  to  money  is  fully  paid.     The  title  to 

be  a  case  in  point.     As  a  matter  the   property   never   passed   from 

of  fact  the  court  held,  as  regards  appellees,     and     therefore     never 

part  of  the  goods  in  controversy,  vested    in    appellant.  *  ♦  •  Upon 

that   the   title   to   the   goods   had  default  of  the  vendee  to  pay,  as 

passed  by  mutual  agreement  with  provided  in  the  contract,  the  ven- 

an  option  in  the  seller  to  retake  dor  has  two  remedies:    1.  He  may 


THE  SELLER'S  RIGHTS 


107 


that  the  seller  can  retake  without  first  giving  back  what 
he  has  received,  as  he  should  do  were  it  a  true  rescission. 

Other  courts  follow  a  theory  harmonious  with  the  idea 
that  possession  by  the  buyer  is  the  real  consideration 
for  his  promise  to  pay.  They  hold  that  the  seller  can  not 
recover  the  price  after  he  has  retaken  the  goods  because 
through  termination  of  the  buyer's  possession  there  has 
occurred  a  failure  of  consideration.*^ 

Still  other  courts  say,  mthout  any  express  reason,  that 
the  remedies  are  inconsistent  and  retaking  precludes  suit 
for  the  price.*"^ 

Underlying  Theory. — From  all  this  conflict  of  author- 
ity no  one,  clear  cut  dispute  of  principle,  much  less  any 
established  principle,  can  be  deduced.  The  decisions  are, 
many  of  them,  too  vague  for  it  to  be  sho^vn  conclusively 
that  those  on  the  one  side  hold  to  one  definite,  clear 


retake  the  property,  which  is  a 
disaffirmance  of  the  sale;  or  2. 
He  may  treat  the  sale  as  absolute 
and  bring  an  action  for  the  price. 
The  undisputed  facts  in  this  case 
show  that  the  appellees  elected  to 
disaffirm  the  contract,  and  took 
possession  of  the  property  de- 
scribed in  the  note.  Having  as- 
serted their  right  to  disaffirm  the 
contract,  and  having  taken  posses- 
sion of  the  property  under  such 
disaffirmance,  appellees  thereby 
abandoned  their  right  to  treat  the 
sale  as  absolute  and  sue  for  the 
price.  The  law  will  not  permit  a 
vendor  of  property  who  retains 
the  legal  title  in  himself  to  take 
possession  of  it  upon  default  of 
payment,  sell,  or  otherwise  dis- 
pose of  it,  and  then  sue  the  vendee 
for  the  balance  of  the  purchase 
price." 

45 — McBryan  v.  Universal  Ele- 
vator Co.,  130  Mich.  Ill;  Perkins 
V.  Grobben,  116  Mich.  172;  Minne- 


sota Harvester  Works  v.  Holly,  27 
Minn.  495;  Aultman  &  Co.  v.  Olson, 
43  Minn.  409;  Keystone  Mfg.  Co., 
74  Minn.  115;  Earle  v.  Robinson, 
36  N.  Y.  S.  176. 

But,  in  accord  with  this  theory, 
if  the  buyer  has  had  possession  for 
the  agreed  time  before  it  was 
taken  from  him,  the  seller  can 
recover.  Equitable  etc.  Co.  v.  Pot- 
ter, 48  N.  Y.  S.  647. 

46 — Crompton  v.  Beach,  62 
Conn.  25;  Loomis  v.  Bragg,  50 
Conn.  228;  Seanor  v.  McLaughlin. 
165  Pa.  150;  Edmead  v.  Anderson, 
103  N.  Y.  S.  369;  Campbell  Press 
Co.  V.  Henkle,  19  D.  C.  95;  Green 
V.  Sinker,  Davis  &  Co.,  135  Ind. 
434. 

Contra.  Dederick  v.  Wolfe,  68 
Miss.  500,  on  theory  that  retaking 
was  not  a  rescission,  but  merely  a 
taking  of  possession  by  way  of 
security;  McDaniel  v.  Chiara- 
monte,  61  Ore.  403,  idem. 


108  THE  LAW  OF  SALES 

theory  and  those  on  the  other  side  believe  positively 
in  a  converse  of  that  theory.  But  from  a  general  survey 
of  the  whole  there  is  little  doubt  that  the  division  is  • 
caused,  however  vague  the  motivating  idea  may  be  in 
any  particular  case,  by  disagreement  as  to  whether  the 
transfer  of  title  is  the  consideration  for  the  promise 
to  pay,  even  though  the  transfer  is  to  be  made  only 
after  pajnuent,  or  whether  something  else,  such  as  the 
possession  of  the  property,  is  the  consideration  for  the 
price  and  the  transfer  of  title  merely  a  condition  sub- 
sequent. If  possession,  for  instance,  is  the  consideration, 
the  seller  ought  logically,  when  he  has  executed  that 
consideration,  to  be  permitted  to  sue  for  the  price, 
whether  he  has  passed  title,  or  can  pass  it,  or  not. 
Correlatively,  if  he  has  sued  for  the  price,  such  suit 
should  not  necessarily  indicate  that  he  thereby  passed 
title,  and  he  ought  still  to  be  allowed  to  retake  posses- 
sion. On  the  other  hand,  if  title  is  the  consideration 
for  the  price,  he  could  not  logically  sue  for  the  price 
without  having  passed  title,  with  or  without  the  buyer's 
assent.  Having  so  sued,  and  thus  shown  an  election 
to  treat  title  as  passed,  he  could  not  logically  be  there- 
after allowed  to  retake  possession  by  asserting  title  in 
himself. 

The  real  conflict  appears  to  be,  therefore,  whether,  in 
the  absence  of  any  clear  expression,  the  courts  will  treat 
the  possession  or  the  title  as  the  real  consideration  and 
will  assume  the  buyer's  agreement  to  be  a  promise  to 
pay  in  consideration  of  the  possession,  mth  passing  of 
title  as  a  condition  subsequent,  or  a  promise  to  pay  in 
consideration  of  the  title,  with  possession  as  a  condition 
precedent. 

Some,  at  least,  of  the  apparent  conflict  within  jurisdic- 
tions may  be  due  to  the  fact  that  in  a  particular  case  there 
is  enough  evidence  of  a  7~eal  intent  to  overcome  the  cus- 
tomary judicial  presumption.*"' 

47— Thus    in    Massachusetts    it      has  been  held  that  a  conditional 


THE  SELLER'S  RIGHTS  109 

3.     Possession  Retained,  but  Title  Passed 

Recovery  of  Price.— A  seller  who  has  parted  with  title 
is  himself  entitled  to  the  purchase  price,  and  may  sue 
for  it,  in  an  action  of  debt  or  indebitatus  assumpsit, 
accordingly.*  This  action  can  not  be  maintained,  how- 
ever, if  the  seller  has  given  credit,  until  the  period 
of  credit  has  expired.  Until  that  time  the  seller  is  not 
entitled  to  payment  of  the  sum,  as  a  debt,  and  there  is 
no  breach  of  contract  on  the  part  of  the  buyer  in  failing 
to  pay  it.  Even  the  refusal  of  the  buyer  to  accept  the 
goods  as  tendered,  or  his  becoming  insolvent,  obviously 
can  not  advance  the  date  at  which  the  seller  Y\^as  to  be- 
come entitled  to  the  purchase  price  and  he  can  not  there- 
fore sue  for  it  before  that  time.*^ 

But  if  the  credit  was  obtained  by  fraud  it  is  sometimes 
held  that  the  seller  is  allowed  to  rescind  so  much  of 
the  contract  as  appertains  to  the  credit,  while  treating 
that  part  which  pertains  particularly  to  the  transfer  of 
title  and  the  price  as  still  in  force.  In  such  case  he  may 
sue  for  the  price  just  as  though  no  credit  had  been 

seller  who  had  brought  suit  for  rier  was  expressly  stated  to  be  the 
the  purchase  price  could  not  there-  consideration.  Compare  also,  Hel- 
after  retake  possession,  Bailey  v.  ler  v.  Elliott,  44  N.  J.  L.  467  and 
Hervey,  135  Mass.  172,  and  that  Campbell  etc.  Co.  v.  Rockaway 
such  a  seller  could  not  recover  Co.,  56  N.  J.  L.  676;  Holt  Mfg.  Co. 
the  purchase  price  after  destrue-  v.  Ewing,  109  Cal.  353,  and  Matte- 
tion  of  the  property,  Tobbut  v.  son  v.  Equitable  Mining  Co.,  143 
Amer.  Ins.  Co.,  185  Mass.  419.  Yet  Cal.  436;  Forbes  Co.  v.  Wilson, 
the  same  court  has  held  that  a  144  Ala.  586;  Alexander  v.  Mobile 
conditional  seller  could  recover  Auto  Co.,  200  Ala.  586,  76  So.  944. 
the  full  amount  of  the  purchase  48 — Tatum  v.  Ackerman,  148 
price  without  having  passed  title,  Cal.  357,  113  Am.  St.  276;  Brady 
White  v.  Solomon,  164  Mass.  516.  v.  Isler,  9  Lea  (Tenn.)  356;  Brad- 
This  may  well  be  explained  on  the  ford  v.  Marbury,  12  Ala.  520; 
ground  that  the  courts  of  Massa-  Keller  v.  Strasburger,  90  N.  Y. 
chusetts  will  not  presume  that  in  379;  Girard  v.  Taggart,  5  Serge  & 
an  ordinary  conditional  sale  the  Rawle  (Pa.)  19;  Button  v.  Solo- 
possession  is  the  consideration  monson,  3  Bos.  &  Pul.  582;  Mus- 
for  the  price,  but  that  in  White  v.  sen  v.  Price,  4  East.  147. 
Solomon  the  delivery  to  the  car- 
*See  Uniform  Sales  Act,  Section  63,  (1). 


110  THE  LAW  OF  SALES 

given.*^  Other  courts,  however,  more  logically,  hold  that 
the  matter  of  credit  is  an  intrinsic  part  of  the  contract 
of  sale  and  that  the  contract  must  be  rescinded  as  a 
whole,  or  not  at  all,  and  that  therefore  the  seller  can  not 
sue  for  the  purchase  price  before  the  period  of  credit  has 
expired,  even  in  cases  of  fraud.^'' 

Breach  of  Contract. — Of  course,  if  the  buyer  refuses 
to  pay  the  price  when  due,  the  seller  can,  if  he  chooses, 
sue  to  recover  damages  for  breach  of  the  contract  instead 
of  suing  in  debt  for  the  price  itself. 

But  where  title  has  already  passed  and  the  buyer 
merely  refuses  to  receive  the  possession,  the  damage 
to  the  seller  from  that  refusal  itself  is  slight,  if  any- 
thing. This  refusal,  however,  may  and  presumably  does 
indicate  an  intent  on  the  buyer's  part  not  to  pay 
when  payment  becomes  due.  It  may  amount,  therefore, 
to  an  anticipatory  breach.  The  buyer  can  not  be  said 
to  have  broken  his  promise  to  pay,  since  the  time  for  pay- 
ment has  not  arrived.  He  may  be  said,  however,  to  have 
impliedly  announced  that  he  will  not  pay  when  the  time 
does  come ;  in  other  words,  to  have  committed  an  antici- 
patory breach  of  the  contract.  If  this  is  the  fair  impli- 
cation, he  may  be  sued  at  once  for  damages  resulting 
from  his  breach,  in  most  jurisdictions.®** 

49 — Heillbronn    v.    Herzog,    165  might  at  once  sue  for  damages  for 

N.    Y.    98;    Willson    v.    Force,    6  breach   of  the  agreement   to  give 

Johns.     (N.    Y.)     110;     Joffray    v.  "security,"  i.  e.,  the  notes.    It  was 

Wolf,  4  Okla.  303.  further  held  that  the  damage  from 

50 — Jones  v.  Brown,  167  Pa.  395.  thi^  failure  to  give  the  notes  was 

51 — Nichols    V.    Scranton    Steel  "the  whole  damages  equal  to  the 

Co.,   137   N.   Y.   471;    Engesett  v.  value  of  the  security  had  it  been 

McGilvray,    63    111.    Ap.    461;    in  given,  prima  facie  the  amount  of 

Orr  V.  Leathers,  27  Ind.  Ap.   572,  the     sum     secured."        (Author's 

it  was  held  that  on  the  buyer's  re-  italics).     Citing  2   Sutherland   on 

fusal  to  give  promissory  notes  as  Damages  (2d  Ed.)  sec.  644. 

agreed,   the   seller  need   not  wait  Cook  v.  Stevenson,  30  Mich.  242; 

for  the  expiration  of  the  credit  but  Hanna  v.  Mills,  21  Wend.  (N.  Y.) 

*See  Uniform  Sales  Act,  Section  51. 


THE  SELLER'S  RIGHTS 


111 


Seller's  Lien. — When  the  title  has  passed  to  the  buyer, 
but  the  seller  has  retained  possession,  he,  the  seller,  has 
a  right,  unless  he  has  given  credit  to  the  buyer,  to  keep 
that  possession  till  payment. 

This  right  to  retain  possession  till  payment  is  called 
a  seller's,  or  vendor's,  lien}^*  It  has  nothing  to  do  with 
the  right  of  an  owner  to  retain  possession  of  his  own 
goods.  It  is  independent  of  title.  Indeed  a  seller's  lien 
exists  only  when  title  has  passed  out  of  the  seller.  Its  ex- 
istence ''always  presupposes  that  title  to  the  goods  has 
passed  to  the  vendee;  since  it  would  be  an  incongruous 
conception  that  a  vendor  might  have  a  lien  on  his  own 
goods.  "^* 

The  seller's  right  of  continued  possession,  until  pay- 
ment, is  effective  even  against  a  purchaser  for  value 
from  the  original  buyer.^* 


90;  Manufacturing  Co.  v.  Cereal 
Co.,  124  Iowa  737. 

As  analogous  issues  in  cases 
not  involving  sales,  Wolf  v.  Marsh, 
54  Cal.  228;  Hosmer  v.  Wilson,  7 
Mich.  294;  Chapman  v.  Kansas 
City  R.  R.,  146  Mo.  481;  Burtis 
V.  Thompson,  42  N.  Y.  246;  Frost 
V.  Knight,  L.  R.  7  Ex.  Ill;  Inch- 
bold  V.  Western  etc.  Co.,  17  C.  B. 
(n.  s.)  733;  Ford  v.  Tiley,  6  B.  & 
Co.  325. 

Contra,  Daniels  v.  Newton,  114 
Mass.  530;  King  v.  Waterman,  55 
Neb.  324. 

52 — Conrad  v.  Fisher,  37  Mo. 
Ap.  353,  382;  Burke  v.  Dunn,  117 
Mich.  430;  Hoskins  v.  Warren, 
115  Mass.  514;  Perrine  v.  Barnard, 
142  Ind.  448;  Sparger  v.  Huffman, 
15  Ky.  L.  R.  848;  Cragin  v.  O'Con- 
nell,  63  N.  Y.  1071. 

53 — Conrad  v.  Fisher,  37  Mo. 
Ap.  352,  8  L.  R.  A.  147;  Perrine 
V.  Barnard,  142  Ind.  448;  Arnold 
V.    Delano,    4    Cush.    (Mass.)    33, 

*See  Uniform  Sales  Act,  Section 


"The  term  lien  Imports,  that  by 
the  contract  of  sale,  and  a  formal 
symbolical  or  constructive  deliv- 
ery, the  property  has  vested  in  the 
vendee;  because  no  man  can  have 
a  lien  on  his  own  goods.  The  very 
definition  of  a  lien  is,  a  right  to 
hold  goods,  the  property  of  an- 
other in  security  for  some  debt, 
duty  or  other  obligation.  If  the 
holder  is  the  owner  the  right  to 
retain  is  a  right  incident  to  the 
right  of  property  *  *  *  ." 

This  is  not,  however,  always 
kept  clearly  in  mind  by  some 
courts,  with  a  resultant  confusion 
of  idea.    See  Post,  p.  114. 

54 — McElwee  v.  Metropolitan 
Lumber  Co.,  69  Fed.  302;  Robinson 
V.  Morgan,  65  Vt.  37;  Vogelsang's 
Admr.  v.  Fisher,  128  Mo.  386; 
Ware  River  R.  R.  Co.  v.  Vibbard, 
114  Mass.  447;  R.  R.  Co.  v.  Plant, 
45  Mo.  517;  Perrine  v.  Barnard, 
142  Ind.  448;  Dixon  v.  Yates,  5 
B.  &  Ad.  313. 
54,  (1). 


112  THE  LAW  OF  SALES 
Effect  of  Loss  of  Possession. — There  is  no  seller's 


lien,  however,  unless  the  title  has  passed  to  the  buyer 
without  a  transfer  of  possession.  That  is  to  say,  the 
right  to  keep  possession  of  the  goods  until  payment 
depends  upon  the  fact  that  the  seller  has  already  stead- 
fastly retained  possession  despite  the  change  of  title. 
By  delivering  actual  possession  of  the  goods  to  the  buyer 
the  seller  loses  his  right  to  any  further  possession, 
whether  he  has  been  paid  or  not.*^ 

But  delivery  of  mere  constructive  possession  to  the 
buyer  does  not  affect  the  seller's  lien.  If  he  has  retained 
the  actual  possession,  his  right  to  continue  in  possession 
is  not  impaired.  In  Woodland  Co.  v.  Mendenhall,^^  for 
instance,  the  seller  sold  copper  wire  to  the  defendant 
and  strung  the  wire  on  the  defendant's  poles.  The 
seller  Company,  however,  was  operating  the  defendant 's 
railroad  at  the  time  and  therefore  had  physical  posses- 
sion of  the  defendant's  poles  and  other  property.  The 
court  accordingly  said  that  while  constructive  possession 
of  the  wire  might  have  passed  to  the  buyer  by  virtue  of 
attachment  to  its  poles,  yet  as  the  poles  themselves  were 
in  the  actual  possession  of  the  seller,  the  actual  posses- 
sion of  the  wire  had  also  been  retained  by  the  seller 
and  therefore  its  seller's  lien  still  existed.  In  another 
case"  the  plaintiff  had  sold  to  one  Dewey  a  number  of 
barrels  of  whiskey  then  stored  in  a  bonded  warehouse. 
As  part  of  the  contract  plaintiff  was  obliged  to  ship 
the  whiskey  to  the  buyer  when  and  as  ordered.  Notice 
of  the  sale  was  given  to  the  warehouse  man  and  he 

55 — Haskins     v.     Warren,     115  the  lien  has  attached,  he  is  de- 
Mass.    514;    Sparger   v.    Huffman,  vested  of  the  lien." 
15    Ky.    L.    R.    848;      Meyers    v.  Statutes  in  some  states  provide 
McAllister,  94  Minn.  510;   Pickett  for  certain  rights  of  repossession 
V.  Bullock,  52  N.  H.  254,  "Posses-  by  the  seller  even  after  he  has 
sion  is  not  only  essential  to  the  transferred  possession.  See  Jones, 
creation,  but  also  to  the  continu-  Liens, 
ance  of  a  lien;  and  when  the  party  56 — 82  Minn.  483. 
vohintarily  parts  with  the  posses-  57 — Mohr   v.    Boston    &   Albany 
Blon  of  the  property  upon  which  R.  R.  Co.,  106  Mass.  67. 


THE  SELLER'S  RIGHTS  113 

thereupon  certified  that  he  held  the  whiskey  for  the 
buyer,  Dewey,  as  owner.  The  court  held  that  even  under 
those  circumstances  Dewey  had  acquired  only  a  con- 
structive possession  and  not  an  actual  one.^®* 

Whether  or  not  there  has  been  an  actual  delivery  of 
possession  to  the  buyer,  as  distinct  from  a  merely  'Con- 
structive  one,  has  been  said  to  be  a  question  of  fact  for 
the  jury  if  the  facts  from  which  it  is  to  be  determined 
are  themselves  uncertain. ^^  The  great  majority  of  courts, 
however,  treat  it,  without  comment,  as  a  question  to  be 
decided  by  the  court  itself. 

Delivery  to  Carrier. — Since  a  carrier  to  whom 


goods  have  been  given  for  transportation  is  treated  as  the 
agent  of  the  buyer  in  so  many  ways,  such  as  to  assent 
to  the  passing  of  title  and  as  to  make  the  buyer  liable 
for  goods  sold  and  delivered,  it  is  a  logical  assumption 
that  by  delivery  to  a  carrier,  without  express  restric- 
tion, the  seller  loses  hisi  lien.  The  seller  would  have 
parted  with  possession,  not  merely  constructively,  but 
actually,  to  an  agent  of  the  buyer.  The  case  would  rarely 
arise  in  practice,  however.     The  fact  that  goods  were 

58 — The  seller's  lien  is  not  lost  dee,  it  is  only  because  of  the  mani- 
"by  any  species  of  constructive  fest  intention  of  the  vendor  utter- 
delivery,  so  long  as  he  (the  seller)  ly  to  abandon  all  claim  and  right 
retains  the  actual  custody  of  the  of  possession,  taken  in  connection 
goods,  either  by  himself,  or  by  with  the  difficulty  or  impossibility 
his  own  agent  or  servant",  Con-  of  making  an  actual  and  manual 
rad  V.  Fisher,  37  Mo.  Ap.  352,  8  transfer,  that  such  a  delivery  is 
L.  R.  A.  147,  citing  many  author-  considered  as  sufficient  to  annul 
Ities.  McElwee  v.  Metropolitan  the  lien  of  the  vendor."  Miles  v. 
Lumber  Co.,  69  Fed.  302;  Arnold  Gorton,  2  C.  &  M.  504,  goods  stored 
V.  Delano,  4  Cush.  (Mass.)  33;  by  seller  at  buyer's  cost. 
Vogelsang's  Admr.  v.  Fisher,  128  Delivery  of  negotiable  ware- 
Mo.  386;  Thompson  v.  Baltimore  house  receipts  so  far  passes  pos- 
&  Ohio  R.  R.,  28  Md.  396,  407,  "In  session  to  the  buyer  as  to  preclude 
all  cases  of  symbolical  delivery,  a  lien  in  the  seller,  Rummel  v. 
which  is  the  only  species  of  con-  Blanchard,  216  N.  Y.  348. 
structive  delivery  sufficient  to  59 — Conrad  v.  Fisher,  37  Mo. 
give  a  final  possession  to  the  ven-  Ap.  352. 

♦See  Uniform  Sales  Act,  Section  54,  (2). 


114  THE  LAW  OF  SALES 

shipped  without  payment  would  indicate  that  credit  had 
been  given.  This  credit  would  be  a  defense  to  a  claim 
of  lien,  without  raising  any  issue  of  possession.  On  the 
other  hand,  if  the  credit  had  been  lost  by  insolvency,  a 
right  of  s.toppage  in  transitu  would  exist  and  it  would  be 
unnecessary  to  assert  any  claim  of  a  lien. 

Of  course,  if  the  goods  have  been  delivered  to  a  carrier 
with  directions  not  to  give  possession  to  the  buyer  until 
pajTnent — the  ordinary  ''C.  0.  D."  shipment — the  lien 
would  not  be  lost,  as  the  carrier  would  clearly  not  be 
the  buyer's  agent  for  possession. 

Loss  of  Possession  Due  to  Fraud. — It  is  said  by 


some  writers  upon  the  subject  that  a  seller's  lien  is  not 
lost,  as  between  the  parties  at  least,  even  though  the  buyer 
has  obtained  possession  of  the  goods,  if  the  possession 
was  secured  by  fraud.  This  appears  reasonable,  but  the 
cases  cited  to  support  these  statements  do  not  actually 
bear  them  out.  In  each  case  there  is  a  confusion  between 
the  ideas  of  title  and  of  seller's  lien,  and  it  appears  that 
the  seller's  right  to  regain  possession  was  based  upon 
the  retention  of  title  till  payment,  rather  than  upon  a 
true  lien.®°* 

Loss  of  Possession  for  a  Special  Purpose. — ^It  is 


also  said  that  the  lien  is  not  lost  by  mere  delivery  of  pos- 
session to  the  buyer  for  some  specific  purpose,  such  as 

60 — Jones  on  Liens,  sec.  830;  strongly  implied  that  fiiZe  had  not 
Williston  on  Sales,  sec.  511;  passed  from  the  seller,  the  court 
Meechem  Sales,  sec.  1488;  Wool-  saying,  "It  is  very  clear  that  until 
sey  V.  Axton  &  Son,  192  Pa.  526;  the  (buyer)  had  the  right  of  pos- 
Bush  V.  Bender,  113  Pa.  94.  In  session  it  could  not  communicate 
McGill  V.  Chilhowee  Lumber  Co.,  a  title  to  any  purchaser."  How- 
Ill  Tenn.  552,  82  S.  W.  210,  it  is  ever,  as  the  court  had  held,  in  an- 
said  specifically  that  the  seller's  other  connection,  that  the  risk  of 
lien  was  not  lost  merely  because  loss  was  not  vipon  the  seller,  as 
the  buyer  had  wrongfully  dispos-  owner,  this  case  does  support  the 
eessed  him  of  the  property,  proposition. 
Almost   in   the  next   breath    it   is 

♦See  Uniform  Sales  Act,  Section  56,  (1). 


THE  SELLER'S  RIGHTS  115 

inspection.  But  here  a^jain  the  cases  are  confused  in 
their  stated  ideas  of  a  lien,  and  indicate  that  the  seller's 
light  to  repossession  is  really  based  upon  the  fact  that 
he  retained  title  until  payment.  And  as  we  have  already 
seen,  title,  if  retained  till  payment,  is  in  no  Avise  affected 
by  delivery  of  posession  to  the  buyer.  It  is  therefore 
at  least  somewhat  doubtful  if  a  seller  who  has  really 
parted  mth  title  has  any  right  to  a  seller's  Uen  after  he 
has  deliberately  parted  with  possession  to  the  buyer,  for 
any  purpose.^^ 

Loss  of  Possession  of  Part  of  the  Goods. — Delivery 


of  possession  of  part  of  the  goods  terminates  the  lien 
upon  that  part,  but  the  lien  on  the  part  retained  is  valid  to 
the  extent  of  the  entire  purchase  price  due.  Again,  how- 
ever, the  authority  is  scanty .^^* 

Effect  of  Giving  Credit. — The  seller's  lien  is  predi- 


cated upon  the  assumption  that,  though  the  parties 
intended  to  pass  title  at  once,  they  also  intended  that 
delivery  of  possession  should  be  concurrent  with  pay- 
ment. Since  the  lien  thus  depends  on  intention,  there 
will  be  no  lien  if  the  parties  appear  to  have  intended  that 

62 — Palmer  v.  Hand,  13  Johns,  lien  upon  the  property."  Morris 
(N.  Y.)  432,  "Where  no  credit  is  v,  Rexford,  18  N.  Y.  555;  Ames  v. 
stipulated  for,  the  vendor  has  a  Moir,  130  111.  582;  Haskins  v.  War- 
lien,  so  that  if  the  goods  be  ac-  ren,  115  Mass.  514;  Lamb  v.  Utley, 
tually  delivered  to  the  vendee,  146  Mich.  654;  Caldwell  v.  Tutt, 
and  upon  demand  then  made  he  10  Lea  (Tenn.)  258. 
refuses  to  pay,  the  property  is  not  63-Williams  v.  Moore,  5  N.  H. 
changed,  and  the  vendor  may  law-  335;  Wanamaker  v.  Yerkes,  70  Pa. 
fully  take  the  goods  as  his  own,  ^43^  confuses  title  and  lien;  Mc- 
because  the  delivery  was  condi-  ^^^^^  ^  Metropolitan  Lumber  Co., 
tional."  Russell  V.  Minor,  22  Wend,  gg  p^^  3^2 .  McFarland  v.  Wheel- 
(N.  Y.)  662,  "the  delivery  is  con-  ^^^  36  Wend.  (N.  Y.)  467;  Dixon  v. 
ditional  and  does  not  become  com-  Yates,  5  B.  &  Ad.  313,  341;  Bolton 
plete  so  as  to  change  the  right  of  vL&YRRCoLRlCP 


property    until    the    condition    Is 
complied  with,  *  *  *  and  the  ven- 
dor does  not  thereby  part  with  his 
*See  Uniform  Sales  Act,  Section  55, 


431;  Ex  parte  Cooper,  11  Ch.  Div. 
68. 


116  THE  LAW  OF  SALES 

possession  should  pass  before  payment.  So,  if  the  seller 
has  given  the  buyer  credit,  without  expressly  stipulating 
for  retention  of  possession,  it  is  presumed  that  he 
intended  the  buyer  to  have  possession  without  concur- 
rent payment.  As  Chief  Justice  Shaw  put  it,  *'A  lien 
for  the  price  is  incident  to  the  contract  of  sale,  when 
there  is  no  stipulation  therein  to  the  contrary,  because 
a  man  is  not  required  to  part  with  his  goods  until  he  is 
paid  for  them.  But  conventio  legem  vincit;  and  when  a 
credit  is  given  by  agreement,  the  vendee  has  a  right  to 
the  custody  and  actual  possession,  on  a  promise  to  pay  at 
a  future  time.  He  may  then  take  the  goods  away,  and  into 
his  own  actual  possession;  and  if  he  does  so,  the  lien 
of  the  vendor  is  gone,  it  being  a  right  incident  to  the 
possession."^* 

Expiration  of  Credit. — If  the  buyer  does  not  take 


advantage  of  his  right  of  possession,  but  leaves  the  seller 
in  possession  until  the  period  of  credit  has  expired,  then 
a  seller's  lien  arises  and  payment  becomes  a  condition 
precedent  to  the  buyer's  right  of  possession.^^ 

Insolvency  of  Buyer. — The  lien  arises  likewise. 


even  before  the  period  of  credit  has  expired,  if  the  buyer 

64 — Arnold  v.   Delano,   4   Cush.  occur  before  the  actual  possession 

(Mass.)   33;   Robinson  v.  Morgan,  was    surrendered,    namely,    insol- 

65  Vt.  37;   Cutler  v.  Pope,  13  Me.  vency  of  the  buyer  or  non-payment 

377;  Conrad  v.  Fisher,  37  Mo.  Ap.  of  the   price  when  the  credit  ex- 

352,    382;    Pickett    v.    Bullock,    52  plred.     In  the  case  of  the  happen- 

N.  H.  354,  "The  right  of  lien  is  to  ing  of  either  of  these  contingen- 

be  deemed  to  be  waived  when  the  cies  before  the  actual  possession 

party  enters  into  a  special  agree-  of   the    lumber   passed    from    the 

ment  inconsistent  with  the  exist-  seller  to  the  buyer,  the  vendor's 

ence  of  the  lien  or  from  which  a  lien  which  had  been  waived  by  a 

waiver    of    it    may    be    fairly    in-  sale  on  credit,  would  revive,  and 

ferred."  the  vendor  might  lawfully  retain 

65 — Robinson  v.  Morgan,  65  Vt.  his  possession  until  the  price  was 

37;  McElwee  v.  Metropolitan  Lum-  paid."     This    case   even   went   so 

ber  Co.,  69  Fed.  302,  "Delivery  (by  far  as  to  say,  if  not  to  hold,  that 

the   seller)    could   not  be   refused  the  revived  lien  was  not  in  turn 

unless  one  of  two  things   should  waived  by  a  fresh  term  of  credit. 


THE  SELLER'S  RIGHTS  117 

becomes  insolvent  before  he  has  taken  actual  possession. 
Hence  a  buyer  who  has  become  insolvent  can  not  have 
possession,  against  the  seller's  will,  even  though  he 
demands  it  before  the  original  period  of  credit  has 
expired.  In  the  words  of  one  court,®^  ''When  the  sale  is 
upon  credit,  it  is  one  of  the  implied  conditions  of  the  con- 
tract that  the  vendee  shall  keep  his  credit  good ;  his  prom- 
ise to  pay  at  a  future  day,  involving  an  engagement  on 
his  part  that  he  \yiU.  remain,  and  then  be,  able  to  pay; 
which  engagement  is  broken  when  he  becomes  insolvent, 
and  unable  to  pay,  and  hence  the  right  of  the  vendor  to 
stop  performance  of  the  contract  on  his  part.  *  *  *  It  is 
true  that,  at  that  time  (when  payment  is  due)  the  vendee 
may  again  be  solvent,  and  able  to  pay.  There  is  no  pre- 
sumption, or  assurance,  that  he  will.  If  any  presumption 
arises,  it  is  rather,  that  the  insolvency  will  continue, 
which  is  more  in  accordance  with  the  experience  of  the 
commercial  world.  "^''^  It  makes  no  difference  that  the 
seller  has  accepted  the  buyer's  notes  or  other  evidences 
of  indebtedness  for  the  purchase  price.  It  is  a  general 
principle  that  notes  given  and  received  are  merely  a 
form  of  evidencing  the  debt  and  are  intended  as  such 
rather  than  as  payment.  In  such  case  the  obligation  of 
the  buyer  to  keep  his  credit  good  is  unchanged,  and  his 
becoming  insolvent  entitles  the  seller  to  retain  posses- 
sion of  the  goods  until  actual  pajTuent.^^    If  the  notes 

66 — Diem  v.  Koblitz,  49  O.  S.  41.  gone,  notwithstanding  his  insol- 
67 — Bohn  Mfg.  Co.  v.  Hynes,  83  vency."  Thompson  v.  Baltimore 
Wis.  388,  "Although,  generally,  &  Ohio  R.  R.  Co.,  28  Md.  396; 
the  purchaser  of  goods  on  credit  White  v.  Welsh,  38  Pa.  396;  Vogel- 
is  entitled  to  the  immediate  pos-  sang's  Admr.  v.  Fisher,  128  Mo. 
session  of  them,  that  right  is  de-  386;  Tuthill  v.  Skidmore,  1  N.  Y. 
feated  if  he  becomes  insolvent  be-  S.  445;  Pratt  v.  S.  Freeman  & 
fore  he  obtains  actual  possession;  Sons  Co.,  115  Wis.  648,  and  fact 
in  such  case  the  vendor  may  re-  that  buyer  again  becomes  solvent 
tain  the  goods  and  enforce  his  does  not  reinstate  his  credit,  sell- 
lien  thereon  for  the  unpaid  pur-  er's  lien  continues;  Dixon  v. 
chase  money.  If,  however,  the  Yates,  5  B.  «S;  Ad.  313. 
purchaser  obtains  the  actual  pos-  68 — Bohn  Mfg.  Co.  v.  Hynes,  83 
session  of  the  goods,  the  lien   is  Wis.  388;   Thompson  v.  Baltimore 


118  THE  LAW  OF  SALES 

or  other  instruments  have  in  fact  been  accepted  in  pay- 
ment of  the  indebtedness  there  will  of  course  be  no  lien 
in  case  of  insolvency.  The  buyer  having  paid  the  seller, 
the  latter  has  no  claim  against  him  under  the  contract 
of  sale.^^* 

The  fact  that  the  buyer's  insolvency  existed  before  the 
contract  of  sale  was  entered  into  does  not  affect  the 
seller's  lien,  if  he  did  not  know  of  the  insolvency.  *'If 
there  be  a  want  of  ability  to  pay,  it  can  make  no  differ- 
ence, in  justice  or  good  sense,  whether  it  was  produced 
by  causes,  or  sho^\^l  by  acts,  at  a  period  before  or  after 
the  sale. ""''^  But  if  the  seller  knew  of  the  buyer's 
insolvency  at  the  time  of  the  contract  he  would  be  held 
to  have  made  the  contract  with  that  in  mind  and,  by 
giving  credit  nevertheless,  to  have  waived  any  right  to 
possession. 

Evidence  of  Insolvency. — To  prove  a  buyer's  in- 


solvency "it  is  not  necessary  that  he  should  have  been 
declared  a  bankrupt  or  insolvent  by  a  judicial  tribunal, 
nor  that  he  should  have  made  an  assignment  of  his  prop- 
erty. If  the  fact  exist,  no  matter  how  proved,  if  suffi- 
ciently and  satisfactorily  proved,  the  law  requires  no 
more.''^  Insolvency  "means  a  general  inability  to  pay, 
evidenced  by  the  stoppage  of  payment, '  ^''^  and  it  may  be 
proved  by  circumstances,  such  as  the  disappearance  of 
the  buyer  and  the  protest  or  mere  non-payment  of  his 

&   Ohio  R.R.,  28  Md.  396;   Vogel-  road,  43   N.  H.   580,    Crummey  v 

Bang's   Admr.   v.    Fisher,   128   Mo.  Raudenbush,   55   Minn.   426;    Lan- 

386;   Tuthill  v.  Skidmore,  1  N.  Y.  caster  Co.  Bank  v.  Huver,  114  Pa, 

S.  445;   Diem  v.  Koblitz,  49  O.  S.  216. 

41-  71— Benedict    v.     Schaettle,     12 

69— Wisconsin  Ins.  Co.  v.  Filer,  q.  S.  515,  523,  quoting  from  Hays 

83  Mich.  496.  v.  Morille,  14  Pa.  48. 

70-Loeb   &  Bro.   v.   Peters,   63  72_Chandler      v.      Fulton,      10 

Ala.   243,  248;  Benedict  v.   Schaet-  rp^^    g 
tie,  12  O.  S.  515:  Reynolds  v.  Rail- 

♦See  Uniform  Sales  Act,  Section  52,  (1),  (2). 


THE  SELLER'S  RIGHTS  119 

notes. '^  Indeed,  it  is  said  that  ''Actual  insolvency  of 
the  vendee  is  not  essential.  It  is  sufficient  if  before  the 
stoppage  in  transitu,  he  was  either  in  fact  insolvent,  or 
had,  by  his  conduct  in  business,  afforded  the  ordinary 
apparent  evidences  of  insolvency."'''* 

But  a  mere  doubt  of  the  buyer's  solvency,  though 
based  on  adverse  reports  from  a  credit  agency,  will  not 
justify  a  refusal  to  deliver  possession  during  the  term 
of  credit.'^ 

— — Effect  on  Lien  of  Suit  for  Price. — The  lien  is  not 


lost  by  a  seller 's  efforts  to  enforce  payment  of  the  price  as 
agreed.  Thus  he  may  receive  a  part  payment,'^  or  secure 
a  judgment,"'"'^  or  even  satisfy  in  part  a  judgment  for  the 
price,'''^  without  destroying  his  right  to  retain  possession 
till  paid  the  whole  price.  The  judgment  is  not  a  settle- 
ment of  the  contract  obligation,  but  a  mere  change  in  its 
form.  The  right  to  possession  is  not  lost  by  proving 
a  claim  for  the  purchase  price  with  the  buyer's  assignee 
in  bankruptcy,''®  nor  with  the  administrator  of  his 
estate.^"* 

Effect  of  Receiving  Security. — Neither  is  the  lien 


lost  because  the  seller  has  received  other,  additional, 

73— TuthiU  V.  Skidmore,  1  N.  Y.  Co.,  19  Weekly  Rep.  388,  A  sold 

S.   445;   Reynolds  v.   Railroad,   43  goods  to  B  and  shipped  them  to 

N.  H.   580;    Crummey    v.   Rauden-  him  by  carrier,  C.  O.  D.    B  refused 

bush,  65  Minn.  426.  to  accept  and  A  recovered  a  judg- 

74 Diem   v.   Koblitz    49    O.    S.  ment  for  the  price  which  was  paid 

41_  In   part.     B  then  claimed   posses- 


75— Jewett  Pub.  Co.  v.  Butler, 
159  Mass.  517;  Kavanaugh  Mfg. 
Co.  V.  Rosen,  132  Mich.  44,  92 
N.  W.  788. 


sion  from  the  carrier  and  sued  in 

detinue.     The  carrier  was  held  to 

be  A's  agent  and,  as  such,  entitled 

to  possession  by  virtue  of  A's  lien 

which  had  not  been  destroyed. 

76— Ante,  p.  115.  79— Conrad  v.  Fisher,  37  Mo.  Ap. 

77— Rhodes  v.  Mooney.  43  O.  S.      352;   Rhodes  v.  Mooney.  43   O.  S. 

421;  Waschow  v.  Waschow,  155  III.      421. 

Ap.   167.  80— Waschow   v.  Waschow,   155 

78— Schrivener  v.  Gt.  No.  R.  R.      111.  Ap.  167. 
*See  Uniform  Sales  Act,  Section  56,  (2). 


120  THE  LAW  OF  SALES 

security  for  the  debt,  unless  the  facts  are  such  as  to  show 
that  acceptance  of  the  other  security  was  inconsistent 
with  the  idea  of  a  lien.^^ 

Effect  of  Seller's  Attaching  the  Goods. — It  seems 


probable  that  the  seller  will  lose  his  lien  if  he  attaches  the 
goods  or  levies  a  judgment  against  them.  There  is,  how- 
ever, a  conflict  of  opinion  upon  this.  His  loss  of  the  lien 
is  placed  on  the  ground  that,  "A  lien  is  destroyed  if  the 
party  entitled  to  it  gives  up  his  right  to  the  possession 
of  the  goods.  If  another  person  had  sued  out  execution, 
the  defendant  might  have  insisted  on  his  lien.  But 
Messer  (the  lienor)  himself  called  on  the  sheriff  to  sell; 
he  set  up  no  lien  against  the  sale;  on  the  contrary,  he 
thought  his  best  title  was  by  virtue  of  that  sale.  Now, 
in  order  to  sell,  the  sheriff  must  have  had  possession; 
but  after  he  had  possession  from  Messer,  and  with  his 
assent,  Messer 's  subsequent  possession  must  have  been 
acquired  under  the  sale,  and  not  by  virtue  of  his  lien."*^ 
This  case  was  reviewed,  with,  others,  in  Lambert  v.  Nick- 
lass,®'  and  a  contrary  decision  reached,  on  the  theory 
that  a  lienor  might  properly  hold  possession  by  an  agent 
and  that  the  sheriff  was  to  be  looked  upon  as  an  agent 
of  the  lienor  so  far  as  concerned  possession.®* 

General   Principles. — These   cases,   holding   that 


where  title  has  passed  a  suit  or  judgment  for  the  price 
does  not  affect  the  seller's  right  to  possession,  must  be 
kept  distinct  from  the  holding  that  where  possession  has 
passed,  but  title  has  been  retained  till  payment,  a  suit  for 

81 — Smith  V.  Greenop,  60  Mich.  84 — Lien    lost    by    attachment, 

61;   Kimball  v.  Costa,  76  Vt.  289;  Lawrence   v.    McKenzie,    88   Iowa 

Angus  V,  MacLachlan,  23  Ch.  Div.  432;    City   National   Bank  v.   Cra- 

330;    In   re   Taylor    [1891],   1   Ch.  han,  135  Iowa  230;  Evans  v.  War- 

Dlv.  590.  ren,    122    Mass.    303;    Wingard   v. 

^    ,  ^    rM  Banning,  39  Cal.  543,  because  the 

82— Jacobs    v.    Latour,    5    Bing.        ,.     ,  .  .      ,  «5j     •* 

attachment   required    an    affidavit 
130 

that  the  demand  was  not  secured 

83—45  W.  Va.  527.  by  any  lien. 


THE  SELLER'S  RIGHTS  121 

the  purchase  price  has  the  effect  of  passing  title.^^  The 
bases  of  the  two  propositions  are  entirely  different,  but 
one  does  occasionally  find  a  tendency  even  in  judicial 
utterance  to  confuse  them. 

Since  recovery  of  a  judgment  does  not  divest  the  sejler 
of  his  lien  it  conversely  follows  that  he  need  not  deliver 
possession  to  the  buyer,  nor  even  tender  it,  in  order  to 
bring  his  suit  for  the  price,  although  he  must  be  able 
and  willing  to  do  so.  And  this  is,  of  course,  consequent 
on  the  assumption  that  title  may  pass  without  change  of 
possession,  and  that  title,  not  possession,  is  the  quid  pro 
quo  for  the  buyer's  grant  of  the  price.®^ 

The  lien  is  not  lost  by  mere  failure  to  set  it  up  as  a 
reason  for  not  delivering  possession.  "An  examination 
of  the  authorities  on  the  subject,  from  the  early  case  of 
Boardman  v.  Sill,  1  Camp.  410,  down,  satisfies  us  that  they 
all  proceed  upon  principles  essentially  of  equitable 
estoppel,  and  limit  the  application  of  the  doctrine  invoked 
by  counsel  to  cases  where  the  refusal  to  deliver  the  prop- 
erty was  put  on  grounds  inconsistent  Avith  the  existence 
of  a  lien,  or  on  grounds  entirely  independent  of  it,  with- 
out mentioning  a  lien.  Thus  it  has  been  repeatedly  held 
that  a  lien  is  not  waived  by  mere  omission  to  assert  it  as 
the  ground  of  refusal,  or  by  a  general  refusal  to  sur- 
render the  goods,  without  specifying  the  grounds  of  it, 
except  in  certain  cases,  where  the  hen  was  unknoAvn  to 
the  person  making  the  demand,  and  that  fact  was  known 
to  the  person  on  whom  the  demand  was  made.    In  such 

85. — See  ante,  p.  103.  think  as  the  sale  was  perfect  be- 

86 — "But    it   would    seem    they,  tween  the  Moffetts  and  Wade,  the 

(the   sellers),   could   not  have   an  Moffetts   could   sue   for  the  price 

action  against  Wade  for  the  price,  after  the  credit  expired,  without, 

even  after  the  term  of  credit  had  a  delivery  or  offer  to  deliver,  be- 

expired,  according  to  the  rule  in  cause  the  law  giving  them  a  lien 

Noy's  Maxims,  until  they  had  de-  on  the  mule,  it  would  be  unreason- 

livered  the  mule  to  Wade,  or  tend-  able  to  require  them  to  relinquish 

ered  him;   and  the  case  of  Potter  it  before  they  were  paid  the  price 

V.    Cowand,   Meigs,    26,   above  re-  agreed."     Wade  v.  Moffett,  21  III. 

ferred  to,  proceeds  on  this  ground.  110. 
The  other  cases  do  not,  and  we 


122  THE  LAW  OF  SALES 

cases,  if  the  ground  of  the  refusal  is  one  that  can  be 
removed,  the  other  party  ought  in  fairness  to  have  an 
opportunity  to  do  so.  But  no  such  state  of  facts  exists 
in  this  case.  While  the  defendant  did  not  specify  his 
vendor's  lien  by  reason  of  plaintiff's  insolvency,  as  the 
ground  of  his  refusal,  yet  he  never  placed  his  refusal 
on  any  ground  inconsistent  with  or  independent  of  it. '  '^"^ 

Enforcement  of  Lien. — Resale. — A  lien  in  its  origin,  as 
the  derivation  of  the  term  from  the  root  word  meaning 
a  *'tie"  or  "bond"  indicates,  gave  no  right  to  sell  the 
goods  subject  to  it.  It  was  a  right  of  possession  merely. 
**The  very  notion  of  a  lien  is,  that  if  the  person  who  is 
entitled  to  the  lien,  for  his  own  benefit  parts  with  the 
chattel  over  which  he  claims  to  exercise  it,  he  is  guilty  of 
a  tortious  act.  He  must  not  dispose  of  the  chattel  so  as 
to  give  some  one  else  a  right  of  possession  as  against 
himself.  The  lien  is  the  right  of  the  creditor  to  retain 
the  goods  until  the  debt  is  paid."®^  If  a  ''seller's  lien" 
were  in  fact  a  lien  only,  the  only  benefit  it  could  be  to  him 
would  be  whatever  he  might  find  in  the  power  of  retain- 
ing possession  of  goods  actually  owned  by  another  per- 
son— a  dubious  benefit  in  some  circumstances. 

But  the  right  of  an  unpaid  seller  who  is  still  in  posses- 
sion, while  it  is  almost  invariably  called  a  lien,  is  in  fact 
much  more  than  a  mere  right  of  continued  possession.  He 
has  a  thoroughly  recognized  right  to  resell  the  property  in 
case  of  an  essential  breach  of  the  contract  by  the  buyer. 
This  right  to  resell  was  recognized  as  early  as  1704  in 
Langfort  v.  Admx.  of  Tiler,^^  when  the  court  said,  ''After 
earnest  given,  the  vendor  cannot  sell  the  goods  to  an- 

87 — Crummey     v.     Raudenbush,  and    one    who    has    claimed    title 

55  Minn.  426;  Everett  v.  Coffin,  6  thereby  loses  his  lien;   Boardman 

Wend.  (N.  Y.)  603;  Fowler  v.  Par-  v.  Sill,  1  Camp.  410,  claim  of  title 

sons,    143    Mass.    401;    White    v.  is  inconsistent  with  that  of  a  lien; 

Gainer,  2  Bing.  23;  contra,  Hanna  of.  Lord  v.  Jones,  24  Me.  439. 

V.   Phelps,   7   Ind.   21;    Hudson   v.  88 — MuUiner     v.      Florence,     3 

Swan,  83  N.  Y.  552,  a  claim  of  title  Q.  B.  Div.  484. 

Is  Inconsistent  with  that  of  a  Hen  89 — 1  Salkeld  113. 


THE  SELLER'S  RIGHTS  123 

other,  without  default  in  the  vendee ;  and  therefore  if  the 
vendee  does  not  come  and  pay  and  take  the  goods,  the 
vendor  ought  to  go  and  request  him ;  and  then  if  he  does 
not  come  and  pay,  and  take  away  the  goods  in  convenient 
time,  the  agreement  is  dissolved,  and  he  is  at  liberty  to 
sell  them  to  any  other  person. ' ' 

This  statement  of  the  court  indicates  that  the  resale, 
if  made,  is  indication  of  a  dissolution  of  the  contract,  and 
many  other  courts  have  spoken  of  the  right  of  resale  as 
founded  on  a  ''rescission"  of  the  contract.  The  actual 
decisions,  however,  do  not  bear  out  the  idea.  For  the 
seller  to  dissolve,  or  rescind,  the  contract,  in  a  proper 
sense  of  those  terms,  would  put  an  end  to  its  existence. 
He  could  not  be  sued,  thereafter,  but  neither,  the  agree- 
ment having  been  rescinded,  could  he  sue  the  ►buyer  in 
assumpsit.  Yet  the  decisions  invariably  recognize  the 
right  of  a  seller  to  sue  the  buyer  on  the  contract  despite 
his  having  enforced  the  lien  by  a  resale  of  the  goods. 
The  theory  on  which  resale  is  based,  therefore,  cannot 
really  be  that  of  a  rescission  of  the  contract  and  a  revest- 
ing of  title  in  the  seller,  who  may  thereupon  resell  his  own 
property.  It  is  rather,  that  the  seller  resells  property  of 
the  buyer,  which  his  lien  gives  him  legal  authority  and 
power  to  do.  ' '  His  right  is  very  nearly  that  of  a  pledgee, 
with  power  to  sell  at  private  sale  in  case  of  default.  "^° 
In  Sands  v.  Taylor,^^  the  seller  resold  wheat,  title  to 
which  had  passed  to  the  buyer,  but  which  the  buyer  re- 
fused to  take  and  pay  for.  He  then  sued  the  buyer  for 
breach  of  the  contract.  The  court  allowed  the  suit  on 
the  theory  that  the  resale  was  not  a  dissolution  of  the 
contract  but  was  made  by  the  seller  as  a  ''trustee,  or 
agent"  for  the  buyer.  The  possession  of  the  seller  was, 
it  must  be  noted,  predicated  in  this  case  on  abandonment 
by  the  buyer  rather  than  on  a  lien.^^ 

90 — Tuthill     V.     Skidmore,     124  92 — See  discussion  of  this  case 

N.  Y.  148.  in  Moore  v.  Poter,  155  N.  Y.  481. 

91—5  Johns.  (  N.  Y.)  395. 


124  THE  LAW  OF  SALES 

In  Conrad  v.  Fisher,®^  the  court  said  specifically,  *'We 
understand  it  to  be  the  settled  law  that  the  right  to  en- 
force a  vendor's  hen,  in  respect  of  goods  sold  upon  credit 
(sic),  is  not  a  right  to  rescind  the  contract  of  sale,  but  is 
a  right  to  detain  the  goods  until  the  indebtedness  for  the 
purchase  price  is  discharged,  at  or  before  the  expiration 
of  the  credit,  and,  if  not  so  discharged  to  sell  them  and 
apply  the  proceeds  of  their  sale  to  the  liquidation  of  the 
indebtedness. '  '^** 

What   Constitutes   Default. — The   fact   that   the 


seller  may  exercise  a  right  of  resale,  by  virtue  of  his  lien, 
in  case  of  essential  default  by  the  buyer,  raises  the  ques- 
tion, what  constitutes  such  a  default. 

A  repudiation  of  the  agreement  by  the  buyer  is  ob- 
viously a  material  breach.  Thus  a  refusal  by  the  buyer 
to  receive  the  goods  if  tendered  is  a  clear  breach  of  con- 
tract and,  seemingly  without  demur,  is  held  to  give  the 
seller  a  right  to  resell  and  sue  for  the  difference.  Of 
course  these  cases  do  not  often  involve  any  question  of 
seller's  hen  by  name,  since  they  arise  out  of  an  attempt 
by  the  seller  to  deliver  possession,  but  they  furnish  a 
positive  analogy  as  to  what  would  constitute  such  a 
breach  as  to  allow  resale  under  the  lien. 

The  case  of  Langfort  v.  Admx.  of  Tiler,^®  already  re- 
ferred to,  intimates  that  mere  failure  of  the  buyer  to  pay 
at  the  time  set  is  not  such  a  breach  as  will  permit  a  re- 

93 — 37  Mo.  Ap.  352,  362.  upon  the  resale."    It  was  assumed 

94 — Diem  v.  Koblitz,  49  O.  S.  41;  in  this  case  that  title  had  passed 

Maclean  v.  Dunn,  4  Bing.  722,  "It  to    the    buyer.      Van    Brocklin    v. 

has  never  been  decided  that  a  re-  Smeallie,  140  N.  Y.  70,  the  right 

sale  of  the  goods  is  a  bar  to  an  of  resale  is  not  limited  to  tangible 

action    for   damages    for   non-per-  property,  nor  to  perishable   prop- 

formance  of  a  contract  to  purchase  erty,  but  applies  to  choses  in  a/> 

them  *  *  *  it  is  most  convenient  Hon  and  any  type  of  merchandise, 

that  when  a  party  refuses  to  take  Ames  v.  Moir,  130  111.  582;  Arnold 

goods    he    has     purchased,     they  v.  Carpenter,  IG  R.  I.  5G0. 
should    be    resold,    and    that    he  95—1  Salkeld  113. 

should  be  liable  to  the  loss,  if  any, 

♦See  Uniform  Sales  Act,  Section  61,   (1). 


THE  SELLER'S  RIGHTS  125 

sale,  but  that  thereafter  ''the  vendor  ought  to  go  and 
request  him ;  and  then  if  he  does  not  come  and  pay,  and 
take  away  the  goods  in  convenient  time,  *  *  *  he  (vendor) 
is  at  liberty  to  sell  them  to  any  other  person."  This 
idea  that  mere  failure  to  pay  is  not  an  essential  breach 
is  "sustained  by  Martindale  v.  Smith,^^  in  which,  although 
the  argument  was  as  to  the  right  to  "rescind"  the  con- 
tract and  revest  title  because  of  default  in  payment,  the 
court  said,  "In  a  sale  of  chattels,  time  is  not  of  the  es- 
sence of  the  contract,  unless  it  is  made  so  by  express 
agreement. ' '  The  mere  stipulation  that  payment  was  to 
be  made  "in  twelve  weeks  from  the  date"  of  the  contract 
was  held  not  expressly  to  make  that  time  of  the  essence.®''^ 
In  Fancher  v.  Goodman,^*  it  was  held  that  a  seller  had  no 
right  to  resell  by  virtue  of  his  lien  merely  because  the 
buyer  did  not  pay  at  the  time  set,  but  that  he  might 
property  have  resold  if  he  had  first  given  notice  to  the 
buyer  that  he  would  resell  if  payment  were  not  forth- 
coming.^^ 

The  failure  of  a  buyer  to  keep  his  credit  good  revives 
the  seller's  lien  and  justifies  him  in  refusing  to  deliver 
possession.  But  such  failure  is  not  a  breach  of  the  con- 
tract to  buy.  The  fact  that  the  buyer  becomes  bankrupt 
does  not  absolve  the  seller  from  his  obligation  to  deliver 
the  property,  if  the  bankrupt  or  his  assignee  is  in  fact 
ready  to  perform  at  the  time  such  performance  is  due. 
Non-payment  by  the  buyer  may,  as  indicated  below,  jus- 
tify the  seller  in  reselling,  but  mere  bankruptcy  before  the 
time  of  payment  does  not  conclusively  indicate  that  the 

96—1  Q.  B.  389.  98—29  Barb.    (N.  Y.)  315. 

97 — This  case  very  strongly  im-  99 — Raymond    v.    Bearnard,    12 

plies  that  the  seller  has  no  right  Johns.     (N.    Y.)     274;     Porter    v. 

of  resale   at   all,   unless  he   shall  Wormser,  94  N.  Y.  431,  there  is  no 

have  truly  rescinded  the  contract,  right  of  resale  while  credit  given 

It    may    possibly    stand    for    the  still  exists;    Greaves  v.  Ashlin,  3 

proposition  that  non-payment  does  Camp.  426,  mere  failure  of  buyer 

not    permit   of   a    rescission,    and  to  take  away  goods  within  a  rea 

that  resale  by  virtue  of  a  lien  is  sonable  time  held  not  to  justify  a 

never  allowed.  resale. 


126  THE  LAW  OF  SALES 

buyer  will  not  be  able  to  pay  when  the  time  comes.""  The 
buyer,  however,  cannot  practically  object  to  a  resale  by 
the  seller,  even  though  the  seller  has  thereby  rendered 
himself  unable  to  perform,  until  he,  the  buyer,  is  himself 
ready  to  perform.  The  unauthorized  resale  is  not  in 
itself  a  breach.  The- breach  would  be  the  seller's  unjusti- 
fied refusal  to  deliver  at  the  proper  time  and  to  predicate 
such  breach  the  buyer  would  have  to  show  that  he  was 
himself  ready  to  perform.^"^ 

But,  failure  of  a  buyer  to  pay  when  agreed  is  quite  an- 
other matter,  and,  as  is  intimated  in  the  cases  just  re- 
ferred to,  if,  after  the  buyer's  failure  to  pay  at  the  time 
stipulated,  the  seller  specifically  notifies  him  that  pay- 
ment is  due,  and  the  buyer  thereafter  refuses  to  pay,  or 
so  neglects  it  as  to  imply  a  refusal,  there  is  a  sufficient 
breach  to  justify  the  seller  in  reselling.^"^* 

If  there  has  been  no  such  breach  by  the  buyer  as  would 
justify  a  resale  by  the  seller,  the  buyer  upon  tender  of  pay- 
ment is,  of  course,  entitled  to  possession  of  the  goods.  If 
the  seller,  by  an  unjustified  resale,  has  put  it  out  of  his  power 
to  perform,  the  buyer  may  have  an  action  against  him, 
upon  tender  of  his  own  performance  at  the  proper  time."' 

Application   of   Proceeds   of  Resale. — Assuming, 


merely,  that  the  seller,  by  virtue  of  his  lien,  has  not  a 

100— Kearney  v.  Union  Pac.  R.  R.  498;   Hayes  v.  Nashville,  80  Fed. 

Co.,  97  Iowa  719,  59  Am.  St.  434;  641;  Maclean  v.  Dunn,  4  Bing.  722; 

Gibson  v.  Carruthers,  8  M.  &  W.  Ogg  v.  Shuter,  L.  R.  10  C.  P.  159; 

321.  1  C.  P.  Div.  47. 

101 — Diem  V.  Koblitz,  49  O.  S.         103 — A  buyer  who  has  tendered 

41;    Rappleye    v.    Racine    Seeder  the  amount  due  the  seller  under 

Co.,  79  la.  220;  Brassel  v.  Troxel,  the  latter's  lien  may  bring  an  ac- 

68  ni.  Ap.  131;  Pardee  V.  Kanaday,  tion    for    conversion    against    the 

100  N.  Y.  121;  Ex  parte  Chalmers,  seller,  Wright  v.  Andrews  Co.,  212 

L.  R.  8  Ch.  Ap.  289.  Mass.  186,  98  N.  E.  798;  Pardee  v. 

102— VanBrocklen    v.    Smeallie,  Kanady,  100  N.  Y.  121;  Martindale 

140   N.    Y.    70;    Olcese    v.    Mobile  v.   Smith,    1   Q.   B.   389;    compare 

Fruit  Co.,  112  111.  Ap.  281;  Nelson  Gibson  v.  Carruthers,  8  M,  &  W. 

v.  Hirsch  &  Sons  Co.,  102  Mo.  Ap.  321. 

•See  Uniform  Sales  Act,  Section  60,  (1),  (2). 


THE  SELLER'S  RIGHTS  127 

right  of  rescission,  but  only  a  right  to  resell  in  satisfac- 
tion of  the  indebtedness,  a  question  is  raised  as  to  the 
party  entitled  to  the  surplus  in  the  unusual  event  that  the 
resale  should  bring  more  than  the  amount  of  the  indebted- 
ness. Logically  the  buyer  would  be  entitled  to  the  excess. 
But  if  the  seller  who  remains  unpaid  after  title'  has 
passed  has  a  right  to  revest  title  in  himself,  by  so  acting 
he  would  become  again  the  owner  of  the  goods,  and  would 
be  entitled  to  all  they  might  bring  upon  a  resale,  just  as 
though  title  had  never  passed  to  the  buyer.  In  the  event 
that  a  resale  should  bring  more  than  the  purchase  price, 
it  would  probably  be  presumed,  although  no  case  involv- 
ing the  precise  question  has  come  to  the  writer's  knowl- 
edge, that  the  seller  had  chosen  to  revest  the  title  in  him- 
self, rather  than  to  resell  in  mere  enforcement  of  his 
lien.  The  real  question,  therefore,  is  whether  a  seller  who 
has  passed  title  but  retained  possession  can  revest  title  in 
himself  upon  the  buyer's  default  in  payment.^*'*  The 
right  to  rescind  contracts,  other  than  those  of  sale, 
because  of  essential  default  on  the  part  of  the  promisor 
is  discussed  in  works  on  contract  and  does  furnish  an 
analogy  for  the  proposition  that  the  seller  in  possession 
may,  if  he  choose,  rescind  and  dissolve  the  contract  in 
such  a  way  as  to  revest  himself  \vith  title,  instead  of  pro- 
ceeding by  way  of  enforcing  his  lien.* 

Failure  to  Resell. — The  same  question  arises  in 


another  form  also.  If  there  has  in  fact  been  such  a  breach 
by  the  buyer  as  would  justify  a  resale  by  the  seller,  in 
enforcement  of  his  lien,  does  the  buyer  continue  to  be 
OA\Tier  until  such  resale!  In  other  words,  is  it  absolutely 
necessary  for  the  seller  to  resell  in  order  to  divest  the 
buyer  of  title?    "While  no  court  appears  to  have  decided 

104 — There  are  cases  in  which  these  the  title  was  in  the  seller 
resale  has  brought  more  than  the  on  a  different  theory  than  rescis- 
original    purchase    price,    but    in      sion. 

*See  Uniform  Sales  Act,  Section  61,  (1). 


128  THE  LAW  OF  SALES 

the  matter  exactly,  there  are  statements  which  intimate 
that  the  seller  could  revest  title  in  himself  on  the  buyer's 
default  and  need  not  resell  the  goods. 

Assuming  in  answer  to  these  questions  that  the  seller 
does  have  power  to  revest  the  title  in  himself,  there  arises 
the  further  question  whether  it  is  necessary  for  him  to 
rescind  the  contract,  in  the  precise  sense  of  putting  an 
end  to  it,  to  do  this.  We  have  seen  that  when  title  has 
not  passed,  the  seller  may  keep  the  goods,  which  are 
already  his  own,  and  sue  for  damages,  which  are  gener- 
ally the  difference  between  the  market  value  and  the 
agreed  price.  We  have  seen  also  that  the  seller  who  has 
passed  title  can  resell  the  goods,  in  a  certain  sense  as  the 
buyer's  property,  and  sue  for  the  difference.  But  can  the 
seller  who  has  passed  title  also  keep  the  goods  as  his  own 
and  still  sue  for  the  difference  between  their  market  value 
and  the  agreed  price?  If,  to  revest  title  in  himself,  he 
has  to  abrogate  the  contract,  there  is  then  no  contract  ex- 
isting on  which  to  base  his  action  for  this  difference. 

This  matter  is  much  confused  with  the  right  of  a  seller 
who  has  not  passed  title  to  keep  the  goods  as  his  own  and 
sue  for  the  difference  between  market  value  at  time  of 
breach  and  the  agreed  price.  But  in  these  cases  the  seller 
has  continued  in  possession  of  the  title  all  the  time ;  there 
is  no  question  of  retaking  it  from  the  buyer.  Neverthe- 
less the  authorities  on  this  point,  particularly  Dustan  v. 
McAndrew,^°^  are  occasionally  made  the  basis  of  state- 
ments, by  both  judges  and  text-writers,  to  the  effect  that 
a  seller  who  has  passed  title  can  retake  it  without  actually 
rescinding  the  contract.  Thus,  in  Van  Brocklin  v.  Smeal- 
lie,^°^  it  is  very  clearly  said,  though  as  a  matter  of  dictum 
only,  that  even  where  title  has  passed  the  seller  still  in 
possession  may  keep  the  goods  as  his  own  and  sue  for 
damages.    But  there  are  not  enough  cases  in  which  the 

105—44  N.  Y.  72.  106—140  N.  Y.  70. 


THE  SELLER'S  RIGHTS  129 

matter  has  been  clearly  passed  on  for  any  real  conclusion 
to  be  drawn.* 

Notice  of  Resale. — The  method  of  reselling,  the 


giving  of  notice  and  the  like,  are  governed  by  the  same 
rules  as  apply  to  resale  in  order  to  fix  damages  in  case  of 
the  buyer's  refusal  to  accept  title.  These  rules  have  al- 
ready been  discussed.^"''  In  that  discussion  it  was 
pointed  out  that  one  reason  why  the  seller  need  not  give 
notice  of  the  resale  was  because  he  was  reselling  his  own 
property  for  the  purpose  of  getting  evidence  as  to  its 
market  value,  and  lack  of  notice,  therefore,  could  not 
affect  the  validity  of  the  sale,  but  only  the  value  of  the 
evidence.  In  case  of  resale  by  a  seller  by  virtue  of  his 
lien,  he  is  selling  property  of  another  person.  It  might 
be  supposed  therefore  that  he  would  be  required  to  give 
notice  at  least.  In  VanBrockhn  v.  Smeallie,^"^  however, 
the  court  said, — as  a  matter  of  dictum  since  notice  had 
in  fact  been  given — that,  even  though  title  had  passed  to 
the  buyer,  the  resale  ''need  not  be  at  auction,  unless  such 
is  the  customary  method  of  selling  the  sort  of  property  in 
question,  nor  is  it  absolutely  essential  that  notice  of  the 
time  and  place  of  sale  should  be  given  to  the  vendee." 
In  Pollen  v.  LeEoy,^°^  the  sale  was  of  specific  property, 
and  the  court  appears  to  have  considered  that  title  had 
passed,  although  its  real  opinion  upon  this  point  is  not 
clear.  Nevertheless,  it  held  expressly  that  notice  of  the 
time  and  place  of  resale  need  not  be  given  the  buyer, 
saying,  "The  law  regards  him  (the  seller),  it  has  been 
said  in  some  of  the  cases,  if  in  possession  of  the  goods, 
as  the  agent  quoad  hoc  of  the  vendee.  But  it  is  no  part 
of  such  an  agency,  or  of  the  duties  involved  in  it,  to  notify 
the  principal  of  the  time  and  place  at  which  the  goods  are 
to  be  sold,  or  exposed  for  sale.  Indeed,  in  a  majority  of 
cases  such  a  notice  would  be  entirely  impracticable,  as  it 

107— Ante,  p.  90.  109—30   N.   Y.   549. 

108—140  N.  Y.  70. 

*See  Uniform  Sales  Act,  Section  61,  (1). 


130  THE  LAW  OF  SALES 

would  have  been  in  this.  Unless  the  sale  is  to  be  public 
and  at  auction,  no  notice  of  the  time  and  place  can  be 
given.  *  *  *  There  is  no  analogy  in  this  particular  be- 
tween this  case  and  that  of  a  pledge.  The  pledgee  is  not 
the  owner  nor  the  agent  of  the  owner.  He  is  clothed  with 
the  possession  and  with  a  right  to  sell  the  property,  in 
order  to  repay  himself  a  debt.  Unless  he  resorts  to 
judicial  proceedings  to  extinguish  the  right  of  his  debtor, 
he  is  bound  to  give  notice  to  the  latter  *  *  *  .  A  vendor, 
on  the  contrary,  is  simply  an  agent,  if  he  elect  to  become 
such,  of  a  vendee  who  refuses  to  complete  his  purchase ; 
an  agent  to  sell  the  property  fairly  and  to  the  best  advan- 
tage. The  only  requisite  to  such  a  sale  as  a  measure  of 
the  rights  and  the  injury  of  the  party,  is  good  faith,  in- 
cluding the  proper  observance  of  the  usages  of  the  par- 
ticular trade. ""° 

In  these  cases  there  had  been  notice  to  the  buyer  of  the 
seller 's  intention  to  resell,  though  the  time,  place  or  man- 
ner of  the  resale  were  not  indicated.  It  is  probable  that 
this  notice  of  intention  to  resell  would  be  requisite  to  a 
resale  by  virtue  of  the  lien,^"  although  it  is  not  usually 
required  in  cases  of  resale  merely  to  fix  damages  when 
title  has  not  passed."^*  If  notice  were  not  given,  it  might 
be  a  fair  assumption  that  the  seller  had  elected  to  rescind 
the  contract  and  take  back  title  to  himself,  if,  as  we  have 
assumed  above,  courts  permit  revesting  of  title  to  be 
done.  That  is,  failure  to  notify  the  buyer  of  the  resale 
would  indicate  that  the  seller  had  chosen  to  resell  the 
goods  as  his  own. 

Stoppage  in  Transitu. — We  have  seen  that  a  seller  by 
delivering  possession  to  the  buyer  loses  his  right  of  lien. 

110 — Waples  &  Co.  v.  Overaker  Mooney,  16   Ind.  Ap.  362;    Dill  v. 

&  Co.,  77  Tex.  7;  accd.  Ridgley  v.  Mumford,   19   Ind.   Ap.    609;    New- 

Mooney,  16  Ind.  Ap.  362.  berger  v.  Rountree,  18  111.  Ap.  610; 

111 — Hayes  v.  Nashville,  80  Fed.  Winslow    v.    Harriman    Iron    Co., 

641;  Davis  Sulphur  Ore  Co.  v.  At-  —  Tenn.  — ,  42  S.  W.  698. 

lanta  Co.,  109  Ga.  607;    Ridgley  v.  U2—Ante,  p.  90. 

*See  Uniform  Sales  Act,  Section  60.  (1).  (3),  (4).  (5),  61,  (2). 


THE  SELLER'S  RIGHTS  131 

There  is,  however,  one  real  or  apparent  exception  to  this. 
If  the  goods  have  merely  been  given  to  a  carrier  for 
transportation  to  the  buyer  and  arc  still  in  transit,  the 
seller  is  allowed  to  retake  possession  if  it  develops  that 
the  buyer  is  apparently  insolvent.  This  right  is  called 
''stoppage  in  transitu."  Like  the  ''seller's  lien"'  the 
term  presupposes  that  title  has  passed  to  the  buyer.^^* 
A  seller  who  has  not  yet  passed  title  may  retake  posses- 
sion from  a  carrier  because  he  is  owner,  just  as  an  owner 
may  keep  possession  if  he  chooses.  But  it  is  only  when 
the  right  of  repossession  is  exercised  by  a  seller  who  has 
parted  with  title  that  the  name  "stoppage  in  transitu" 
is  properly  applied."** 

Origin. — This  right  to  retake  possession  appears 


to  have  originated  in  equity,  on  the  principle  that  if  a 
seller  could  prevent  the  goods  from  actually  coming  into 
the  hands  of  a  bankrupt  he  ought  to  be  allowed  to  do  so. 
It  was  soon  developed  also  as  a  principle  of  law.^^^ 

113 — Reynolds  v.  Rr.,  43  N.  H.  frequently    raised    as    any    other 

580;  Dickman  v.  Williams,  50  Miss,  mercantile     question    within    the 

500;   Rowley  v.  Bigelow,  12  Pick,  last    hundred    years,    it   must    be 

(Mass.)  307;  Bolton  V.  Lancashire,  owned  that  the  principle  on  which 

etc.  Co.,  L.  R.  1  C.  P.  430,  439.  it  depends  has  never  been  either 

114 — Courts      occasionally      ne-  settled  or  stated  in  a  satisfactory 

gleet    the    true    meaning    of    the  manner.      In   courts   of   equity   it 

phrase   and   use   it   in  connection  has  been  a  received  opinion  that 

with  retaking  by  an  owner.  Swan-  it  was  founded  on  some  principle 

wick  V.  Sothern,  9  Ad.  &  El.  895;  of  common  law.    In  courts  of  law 

Cf.  Pattison  v.  Culton,  33  Ind.  240.  it  is  just  as  much  the  practice  to 

The    distinction    is    acted    on    in  call  it  a  principle  of  equity,  which 

Kearney  v.  Union  Pac.  Rr.  Co.,  97  the    common    law    has    adopted." 

Iowa  719,  59  Am.  St.  434.  This  opinion  cites  authority  bear- 

115 — Wiseman   v.   Vandeputt,   2  ing  upon  the  conflicting  theories 

Vernon  203;   Burghall  v.  Howard,  of  origin  and  points  out,  also,  the 

1  H.  Blackstone  365  N;  D'Aquila  v.  existence    of   the    right    in    other 

Lambert,  1  Ambler  399,  2  Eden  77;  systems  of  law. 

Gibson  v.  Carruthers,  8  M.  &  W.  That  the  right  of  stoppage  orig- 

321,    "Although    the    question    of  inated  neither  in  law  nor  in  equity, 

stoppage  in  transitu  has  been  as  but   was   adopted   from   the   Law 

*See  Uniform  Sales  Act,  Section  57. 


132  THE  LAW  OF  SALES 
When  Right  Arises. — The  right  of  stoppage  arises 


only  when  the  buyer  is  discovered,  after  the  shipment  of 
the  goods,  to  be  insolvent.  Since  the  title  to  the  goods  is 
in  the  buyer,  the  seller  has  no  right  to  them,  after  he  has 
parted  with  possession,  save  by  virtue  of  this  particular 
remedy.  This  right  arose,  as  the  expression  of  the  early 
cases  indicates,  out  of  desire  to  protect  the  seller  against 
obvious  and  inevitable  loss,  rather  than  from  any  logic- 
ally derived  rule  of  law.  ''It  was  determined,  on  solid 
reasons,  that  the  goods  of  one  man  should  not  be  applied 
in  payment  of  another  man's  debts."  It  extends,  there- 
fore, only  to  cases  where  the  buyer  is  discovered,  subse- 
quent to  the  sale,  to  be  insolvent.  The  date  on  which  the 
buyer  became  insolvent  is  immaterial;  it  is  the  date  on 
which  the  seller  becomes  aware  of  it  that  matters.  The 
right  of  stoppage  is  not  derogated  by  the  fact  that  the 
buyer  was  already  insolvent  at  the  time  of  shipment,  or 
even  at  the  time  the  contract  of  sale  was  entered  into. 
''If  there  be  a  want  of  ability  to  pay,  it  can  make  no  dif- 
ference, in  justice  or  good  sense,  whether  it  was  produced 
by  causes,  or  shown  by  acts,  at  a  period  before  or  after 
the  sale.""« 

If  the  seller  knew,  actually  or  constructively,  of  the 
buyer's  insolvency  at  the  time  of  shipment,  or,  a  fortiori, 
at  the  time  of  making  the  contract,  there  would  be  no  rea- 
son for  allowing  him  to  stop  in  transitu.  The  fact  that 
he  shipped  the  goods,  knowing  the  buj^er  to  be  insolvent, 
would  clearly  imply  an  intent  to  give  the  buyer  possession 

Merchant  is  stated  in  Kendall  v.  right  as  existing  when  title  is  in 

Marshall,  11  Q.  B.  D.  356.  the  buyer. 

It  is  obvious  from  the  language         116— Loeh  &  Bro.  v.  Peters,  63 

of  the  early  cases  that  some  idea  Ala.  243,  248;   Lancaster  Co.  Bk. 

of  title  not  having  passed  at  all  v.  Huver,   114  Pa.  216;    Reynolds 

entered  into  the  decision  and  the  v.  Rr.,   43    N.   H.    580,   overruling 

seller  was  thought  of  as  retaking  Rogers  v.   Thomas,   20   Conn.   53; 

possession     of     his     own     goods,  Buckley  v.  Furniss,  15  Wend.  (N. 

rather  than  retaking  title,  or  re-  Y.)  137;  O'Brien  v.  Norris,  16  Md. 

asserting   a  mere   lien.     But  the  122;  Blum  &  Co.  v.  Marks,  21  La. 

later  cases   clearly  recognize  the  An.  268;  More  v.  Lott,  13  Nev.  376. 


THE  SELLER'S  RIGHTS  133 

despite  that  fact,  and  the  reason  for  the  exception  to  the 
rule  that  a  seller  can  not  retake  possession  after  title  has 
passed,  would  be  gone.    The  courts  so  hold.^" 

As  will  be  seen  later,"'  the  exercise  of  the  right  to  stop 
is  not  a  rescission  of  the  contract  but  a  mere  withholding 
of  actual  possession  of  the  goods.  As  no  more  effect' than 
a  delay  in  possession  would  result,  the  courts  have  been 
unanimous  in  holding  that  actual  insolvency  of  the  buyer 
is  not  necessary  to  justify  the  stoppage.  Such  an  ap- 
pearance of  insolvency  as  would  lead  a  reasonable  man 
to  suppose  insolvency  existed  is  all  that  is  necessary. 
The  courts  appear  to  make  a  distinction,  although  there 
is  no  statement  to  such  effect,  between  the  evidence  of 
insolvency  which  will  support  a  seller's  right  to  keep 
possession,  (as  against  an  attaching  creditor  of  the  buyer, 
for  instance,)  and  that  which  will  protect  him  against  a 
suit  in  damages  for  delay  caused  by  his  stoppage.  For 
the  one,  actual  insolvency  is  necessary,  for  the  other  only 
appearance  of  insolvency.  This  may  explain  some  of  the 
dissimilarity  in  holdings  upon  rather  similar  facts. ^^® 

But  there  must  be  a  real  appearance  of  insolvency  at 
least  and  mere  suspicion  that  the  buyer  is  insolvent,  or 
belief  that,  from  other  reasons  than  insolvency,  he  will 
not  pay  for  the  goods,  will  not  justify  a  stoppage  and  a 
seller  who  has  acted  on  any  such  reason  is  not  entitled  to 
possession  and,  moreover,  will  be  liable  in  an  action  for 
damages  by  the  buyer."® 

117 — O'Brien  v.  Norris,  16  Md.  93  Wis.  250,  failure  to  pay  seller's 

122;  Buckley  v.  Fumiss,  15  Wend,  claim  and  disappearance  of  buyer 

(N.  Y.)  137;  Blum  &  Co.  v  Marks,  sufficient;    More   v.   Lott,  13   Nev. 

21  La.  An.  268;  Fenkhausen  v.  Fel-  376. 

lows,  20  Nev.  312;  Evans  etc.  Co.  120 — Kavanaugh     Mfg.     Co.     v. 

V.  Missouri  K.  &  T.  Rr.,  64  Mo.  Rosen,  132  Mich.  44,  92  N.  W.  788, 

Ap.  305.  mere    belief   founded    on   unsatis- 

118 — Post,  p.  146.  factory  rating  by  a  credit  agency 

119 — O'Brien  v.  Norris,  16  Md.  not  sufficient;   Jewett  Pub.  Co.  v. 

122,  "if  a  stoppage  of  payment  by  Butler,  159  Mass.  517,  mere  doubt 

the  vendee  be  proved,  it  is  suffi-  not  enough;  Bayonne  Knife  Co.  v. 

cient."  Jeffris  v.  Fitchburg  R.  R.,  Umbeuhauer,  107  Ala.  496;  Smith 


134  THE  LAW  OF  SALES 

The  right  of  stoppage  is  not  affected  by  the  fact  that 
the  seller  has  received  notes  or  other  instruments  for  the 
price,  or  in  other  ways  given  credit,  nnless  such  notes 
have  been  accepted  in  payment.^^^*  Neither  is  it  affected 
by  part  payment,  although,  of  course,  the  debt  for  which 
the  property  could  be  held  would  be  proportionately 
reduced.^^^ 

Does  Not  Exist  Against  Buyer's  Possession. — The 


right  of  stoppage  in  transitu  is,  as  its  name  indicates,  a 
right  to  retake  possession  only  while  the  goods  are  in 
transit  to  the  buyer.  The  exception  on  which  the  right 
is  founded  does  not  go  to  the  extent  of  permitting  repos- 
session after  the  journey  is  ended.  This  point  was  raised 
in  Conyers  v.  Ennis.^^'  In  that  case  it  appeared  that  one 
Rousmaniere  had  ordered  goods  of  the  plaintiff  which 
the  latter  duly  shipped  to  him.  He  was  insolvent  at  the 
time,  although  this  was  unknown  to  the  plaintiif ,  and  later 
committed  suicide.  The  carrier  dehvered  the  goods  into 
the  hands  of  his  administrators,  the  defendants.  The  de- 
fendants resold  the  goods  and  the  plaintiffs  now  claimed 
the  proceeds.  As  there  appeared  to  be  no  actual  fraud 
on  Rousmaniere 's  part  on  which  a  rescission  of  the  con- 
tract could  be  founded,  the  plaintiffs  claimed  a  right  of 
stoppage  in  transitu. 

Mr.  Justice  Story  began  his  opinion  by  recognizing  that 
''this  is  a  case  of  extreme  hardship,  and  such  as  might 
well  induce  a  court  to  strain  after  some  mode  of  redress. ' ' 

&  Co.  V.  Barker,  102  Ala.  679,  fact  273;  Hays  v.  Mouille  &  Co.,  44  Pa. 
that  buyer  has  absconded  is  not,  48,  notes  need  not  be  tendered 
by  itself,  enough;  Gustine  v.  Phil-  back  at  time  of  stoppage;  Ed- 
lips,  38  Mich.  674.  wards  v.  Brewer,  2  M.  &  W.  375; 

121— Newhall  v.  Vargas,  13  Me.  Feise  v.  "Wray,  3  East  93. 

93;   Stubbs  v.  Lund,  7  Mass.  453;  122 — Newhall  v.  Vargas,  13  Me. 

Brewer  Lumber  Co.  v.  Bost.  &  Al.  93 ;    Howatt  v.  Davis,  5  Mumford 

Rr.,  179  Mass.  228,  even  though  on  (Va.)   34;    Feise  v.  Wray,  3  East 

receipt  of  note  bill  is  marked  paid;  93. 

Clapp   Bros.   v.    Sohmer,   55   Iowa  123—2  Mason  236,  Fed.  Cas.  3149. 

♦See  Uniform  Sales  Act,  Section  52,  (1),  (2). 


THE  SELLER'S  RIGHTS  135 

*  *  The  principal  point, ' '  he  continued, ' '  which  under  these 
circumstances  has  been  pressed  at  the  bar,  is  that  the 
right  of  a  consignor  to  stop  property  in  cases  of  insolv- 
ency, ought  not  to  be  confined  to  cases  of  stoppage  in 
transitu,  but  in  equity  should  extend  to  all  cases  where 
the  property  is  not  paid  for  and  remains  in  the  hands  of 
the  consignee.  It  is  admitted  that  the  decisions  in  Eng- 
land have  confined  the  right  of  stoppage  to  cases  where 
the  property  is  in  its  transit.  But  it  is  suggested,  that  the 
point  has  not  been  solemnly  adjudged  in  the  United 
States,  and  that  it  is  open  for  the  court  to  adopt  the  more 
enlarged  rule,  hinted  at  by  Lord  Ilardwicke,  in  Snee  v. 
Prescott}^^  *  *  *  All  argument  of  this  sort  is  addressed 
in  vain  to  this  court.  *  *  *  Nothing  is  better  settled,  if 
an  uninterrupted  series  of  authorities  can  settle  the  law, 
than  the  doctrine  that  the  vendor,  in  cases  of  insolvency, 
can  stop  the  property  only  while  it  is  in  its  transit.  If 
it  has  once  reached  the  consignee,  there  is  an  end  of  all 
right  to  reclaim  it  as  a  pledge  for  the  pajTnent  of  the  pur- 
chase money.  "^''^ 

When  Goods  Are  in  Transit. — The  issue  is  very 

often  raised,  therefore,  as  to  just  when  the  transit  be- 
tween seller  and  buyer  has  ceased.  In  general  it  may  be 
said  that  it  is  not  at  an  end  until  the  goods  have  come 
into  the  actual  possession  of  the  buyer  or  the  possession 
of  someone  acting  as  the  buyer's  agent  for  the  purpose 
of  possession* 

Very  broadly  speaking  the  goods  are  in  transit, 
whether  in  motion  or  at  rest,  whether  in  the  hands  of  the 
original  carrier  or  of  some  remote  forwarder,  so  long  as 

124—1  Atk.  245.  44  Fla.  803,  33  So.  527.  Even  though 
125 — This  is  true  even  though  the  carrier  later  takes  possession 
the  buyer  personally  is  willing  to  from  the  buyer  and  goods  are  in 
give  up  the  goods  and  admits  that  its  hands  at  time  of  seller's  at- 
he  received  them  without  intend-  tempt  to  stop.  Re  Dancy  Hard- 
ing to  keep  them.     Smith  v.  Gail,  ware  Co.,  198  Fed.  336. 

*See  Uniform  Sales  Act,  Section  58,  (1),  (2),  (3),  (4). 


136  THE  LAW  OP  SALES 

the  bailee  in  whose  possession  they  are  has  them  by  virtue 
of  the  seller's  contract  with  the  transportation  agency. 
The  transit  does  not  end  until  the  person  in  whose  pos- 
session they  are,  holds,  by  virtue  of  some  new  agreement, 
under  some  contract  relation  with  the  buyer,  or  his 
privy.^^^ 

Mere  length  of  time  elapsed  between  the  shipment  and 
the  attempt  to  stop  in  transitu  does  not  itself  terminate 
the  transit,  nor  otherwise  affect  the  right. ^^"^ 

The  carrier,  as  such,  is  an  agent  for  carriage  and  not 
primarily  for  possession  and  the  transit  is  not  at  an  end 
so  long  as  the  goods  are  in  its  possession  as  carrier.  Even 
though  they  have  come  to  their  journey's  end  so  far  as 
the  carrier's  duty  to  transport  is  concerned,  if  the  freight 
is  still  unpaid,  or  the  carrier  has  another  lien  against 
them,  and  the  carrier  has  not  agreed  with  the  buyer  to 
hold  under  a  new  contract  with  him,  they  are  still  tech- 
nically in  transit.'^^^  But  the  idea  of  transportation — not 
necessarily  meaning  motion — is  essential ;  if  it  is  lacking, 
the  agent  is  obviously  an  agent  primarily  for  posses- 
sion.^^® 

The  character  of  the  carrier  is  immaterial.  So  long  as 
it  is  acting  as  an  agent  for  the  purpose  of  transportation 
only  and  is  not  an  agent  of  the  buyer  for  purpose  of  pos- 
session, as  such,  the  right  of  stoppage  may  be  exercised.^'® 

126 — It  has  been  said  that  even  Schneider,  13  Ind.  Ap.  23;  Harding 

actual  physical  possession  by  the  Paper  Co.  v.  Allen,  65  Wis.   576; 

buyer    would    not    terminate    the  Kahnweiler  v.  Buck,  2  Pears.  (Pa.) 

transit  if  without  consent  on  his  69,  even  though  carrier  has  made 

part.     Heinekey  v.  Earle,  8  El.  &  tender  of  possession  to  the  buyer; 

Bl.  410.  120  Eng.  Rep.  153.  Coleman  v.  N.  Y.,  N.  H.  &  H.,  215 

127 — Buckley     v.     Furniss,     15  Mass.  45,  even  though  buyer  has 

Wend.  (N.  Y.)  137,  40  days;  Jeffris  paid  freight  and  taken  samples. 

V.  Fitchburg  Rr.,  93  Wis.  250,  more  129— Rummel  v.  Blanchard,  216 

than  a  year.  js^  y   343 

128- Jeffris  v.  Fitchburg  R.  R.,  i3o_Johnson  v.  Eveleth.  93  Me. 

93  Wis.  250;   Brewer  Lumber  Co.  ^^^    ^^^^^^^  company  as  carrier; 

v.   Bost.   &   Al.   R.   R..   179   Mass.  Muskegon   v.   Underbill.  43   Mich. 

228;  Wheeling  &  L.  E.  R.  R.  Co.  v.  ggg.  implied. 
Koontz,   61   O.   S.   551;    Rogers  v. 


THE  SELLER'S  RIGHTS  137 

Even  if  the  means  of  transportation  is  owned  or 
chartered  by  the  buyer,  if  it  is  used  as  a  carrier  for  the 
purpose  of  transporting  the  goods  to  the  buyer,  the  goods 
are  in  transit  until  they  reach  him,  and  are  subject  to 
stoppage. ^^^ 

If,  however,  they  are  delivered  to  a  vessel  or  other'car- 
rier  as  though  to  a  warehouse,  or  to  an  agent  for  posses- 
sion, then  the  transit  between  the  seller  and  the  buyer  is 
at  an  end,  despite  the  fact  that  the  goods  are  to  be  car- 
ried to  other  points.  The  matter  is  well  stated  in  Berndt- 
son  v.  Strang,^^^  the  court  saying,  ''If  a  man  send  his  o\vn 
ship,  and  orders  the  goods  to  be  delivered  on  board  his 
own  ship,  and  the  contract  is  to  deliver  them  free  on 
board,  then  the  ship  is  the  place  of  delivery  and  the 
trausitiis  is  at  an  end,  just  as  much  *  *  *  as  if  the  pur- 
chaser had  sent  his  own  cart,  as  distinguished  from  hav- 
ing the  goods  put  into  the  cart  of  a  carrier.  Of  course 
there  is  no  further  transit  us  after  the  goods  are  in  the 
purchaser's  own  cart.  There  they  are  at  home,  in  the 
hands  of  the  purchaser,  and  there  is  an  end  of  the  Avhole 
delivery.  The  next  thing  to  be  looked  to  is,  whether  there 
is  any  intermediate  person  interposed  between  the  vendor 
and  the  purchaser.  Cases  no  doubt  may  arise,  where  the 
transitus  may  be  at  an  end  although  some  person  may 
intervene  between  the  period  of  actual  delivery  of  the 
goods  and  the  purchaser 's  acquisition  of  them.  The  pur- 
chaser, for  instance,  may  require  the  goods  to  be  placed 
on  board  a  ship  chartered  by  himself  and  about  to  sail  on 
a  ro\'ing  voyage.  In  that  case,  when  the  goods  are  on 
board  the  ship  everything  is  done;  for  the  goods  have 
been  put  in  the  place  indicated  by  the  purchaser  and  there 
is  an  end  of  the  transitus." 

The  question  of  whether  the  delivery  to  the  carrier  is 
for  transportation  between  the  seller  and  buyer,  or  is  a 
delivery  to  a  representative  of  the  buyer  for  transporta- 

131— NewliaU  v.  Vargas,  13  Me.      parte  Falke,  14  Ch.  Div.  446,  7  App. 
93;   Stubbs  v.  Lund,  9  Mass.  453;       Cas.  573. 
Ilsley  V.   Stubbs,   9   Mass.   65;   Ex  132— L.  R.  4  Eq.  481. 


138 


THE  LAW  OF  SALES 


tion  elsewhere,  is  really  one  of  fact  in  each  case  and  not 
one  that  can  be  solved  by  the  application  of  any  rule.^^' 

The  truest  test,  although  one  not  expressed  by  courts 
is,  that  if  the  possessor  of  the  goods  holds  them  through 
contract  with  the  seller,  the  goods  are  in  transit,  while  if 
contract  relation  with  the  seller  has  terminated,  or  the 
possession  has  been  delivered  without  contract  relation, 
the  transit  is  ended. ^^* 

The  coming  of  the  goods  into  other  hands  than  those  of 
the  original  carrier  does  not  necessarily  terminate  the 
transit,  if  the  original  contract  still  exists. 

The  delivery  by  the  carrier  to  a  wharfinger  or  ware- 
houseman does  not  terminate  the  transit,  if  such  recipient 
is  the  carrier's  agent,  or  a  public  agent,  to  hold  the  goods 
until  actual  or  constructive  delivery,  to  the  buyer.  Such 
a  warehouseman  is  merely  a  link  in  the  chain  of  trans- 
portation under  the  seller's  original  directions.^'* 


133— Bethell  &  Co.  v.  Clark,  20 
Q.  B.  Div.  615. 

134 — Newhall  v.  Vargas,  13  Me. 
93;  Stubbs  v.  Lund,  9  Mass.  453; 
Berrendson  v.  Strang,  L.  R.  4  Eq. 
481;  Cf.  Schotsmans  v.  Lancashire 
&  Y.  R.  R.,  L.  R.  2  Ch.  Ap.  336. 
Id  Bethell  &  Co.  v.  Clark,  20  Q.  B. 
Div.  615,  the  contract  of  sale  was 
silent  as  to  delivery  but  the  buy- 
er's subsequent  order  was  to  "con- 
sign *  *  *  to  the  'Darling  Downs', 
to  Melbourne  *  *  *".  The  issue 
was  whether  transit  ended  with 
delivery  on  board  the  Darling 
Downs.  The  court  held  that  it  did 
not  80  end,  that  where  the  transit 
"has  been  caused  either  by  the 
terms  of  the  contract  or  by  the  di- 
rections of  the  purchaser  to  the 
vendor,  the  right  of  stoppage  in 
transitu  exists"  and  that  the  "busi- 
ness moaning"  of  the  order  in  this 
case  was,  not  that  the  goods  were 


to  be  delivered  to  the  Darling 
Downs  as  to  a  warehouse,  thence 
to  be  sent  further  by  the  buyer, 
but  to  her  as  a  carrier  which 
would  transport  them  to  Mel- 
bourne. The  Darling  Downs  ap- 
pears to  have  been  a  general  ship, 
scheduled  to  sail  to  Melbourne  in- 
dependently of  the  buyer.  In. 
Rowley  v.  Bigelow,  12  Pick. 
(Mass.)  307,  the  goods  were  or- 
dered delivered  to  the  ship  "Lion", 
which  the  buyer  owned  himself, 
and  which  he  had  himself  appar- 
ently ordered  to  proceed  to  Boston. 
It  was  held  that  the  transit  ended 
on  delivery  aboard  the  Lion. 

135— Reynolds  v.  R.  R.,  43  N.  H. 
580;  Calahan  v.  Babcock,  21  O.  S. 
280;  Mottram  v.  Heyer,  5  Denio 
(N.  Y.)  629,  delivery  to  customs 
ofTicers;  Donath  v.  Broomhead,  7 
Pa.  301,  idem. 


THE  SELLER'S  RIGHTS  139 

Neither  is  the  original  transit  terminated  by  dehvery 
from  one  carrier  to  another  so  long  as  both  are  actors  in 
the  originally  contemplated  journey."^  But  the  transit 
is  ended  when  the  original  carrier  delivers  them,  even  to 
another  carrier,  if  the  delivery  is  at  the  buyer's  order  and 
was  not  a  part  of  the  transit  originally  contemplated  as 
necessary  to  get  them  to  the  buyer.  The  second  carrier 
then  holds  them  as  the  buyer's  representative  in  posses- 
sion. Thus,  in  Li  re  Patterson  Co.,^^''^  C  ordered  goods 
of  B,  who  in  turn  ordered  them  of  A.  A  thereupon 
shipped  them  to  B,  at  St.  Louis.  On  their  arrival  there 
B  reconsigned  them  to  C,  in  Arkansas.  The  court  held  the 
transit  to  have  ended  with  B's  reconsignment,  as  the 
original  journey  to  the  buyer  was  ended  in  St.  Louis,  even 
though  the  sellers  knew  they  were  ultimately  to  go  fur- 
ther on,  and  had  tagged  the  goods  with  C's  name  and 
address.^^^ 

A  fortiori,  the  transit  is  not  ended  through  mere  deliv- 
ery of  the  goods  to  a  warehouseman  whose  duty  is  to  send 
the  goods  still  further  on  their  journey.  And  this  is  so 
even  though  the  orders  as  to  the  rest  of  the  journey  are 
to  come  from  the  buyer  himself.  Although  it  does  not 
expressly  appear  in  the  cases,  a  distinction  would  un- 
doubtedly be  made  if  the  parties  had  not  clearly  contem- 
plated the  place  of  the  further  journey  at  the  time  of 
shipment.  That  is  to  say,  the  holdings  that  a  ware- 
houseman in  whose  care  goods  have  been  consigned  is 
not  a  possessory  agent  of  the  buyer  seem  to  be  founded 

136— White  v.  Mitchell,  38  Mich.  R.  R.  Co.,  108  Ga.  70,  79  Am.  St. 

390,     delivery     by    carrier    to     a  26,  a  sub-buyer  laid  his  hands  on 

carter;  Re  Burlte  &  Co.,  140  Fed.  the    goods    while    in    the    freight 

971,    idem;    Bethell    v.    Clark,    20  house  at  their  original  destination 

Q.  B.  Div.  615.  and  ordered  them  sent  to  his  own 

137 — 186  Fed.  629.  buyer;  yet  the  original  seller  was 

138 — Cf.  Muskegon  Booming  Co.  allowed  to  retake  possession.  In 
V.  Underbill,  43  Mich.  629;  Brooke  Lewis  v.  Sharvey,  58  Minn.  464,  a 
Iron  Co.  V.  O'Brien,  135  Mass.  444;  mere  order  from  the  buyer  to  the 
Norfolk  Co.  V.  N.  Y.,  N.  H.  &  carrier  to  deliver  to  another  per- 
il. R.,  202  Mass.  160.  son   in   the   same   place   was  held 

But  in  Bravan  v.  Atlanta,  etc.  not  to  terminate  the  transit. 


140  THE  LAW  OF  SALES 

on  the  fact  that  at  the  time  of  consignment  it  was  con- 
templated that  tliey  had  still  to  go  to  some  definite  place 
before  reaching  the  buyer,  although  the  buyer  was  to 
direct  their  getting  there.  Thus,  where  goods  were  con- 
signed to  the  buyer  at  Malone,  in  care  of  a  warehouse- 
man at  Plattsburg,  it  was  obvious  that  a  journey  beyond 
Plattsburg  was  contemplated,  even  though  the  means 
of  getting  them  from  Plattsburg  to  Malone  was  left  to 
the  buyer's  arrangement.  In  that  case  it  was  held  that 
the  goods  had  not  come  to  the  end  of  their  transit  in 
the  warehouseman's  hands.^^* 

Delivery  by  the  carrier,  even  to  a  recipient  who  has 
nothing  to  do  with  the  transportation,  does  not  end  the 
transit  if  the  recipient  does  not  in  any  way  represent 
the  buyer,  as  agent  or  otherwise.^*"  But  the  right  is  lost 
if  the  recipient  represents  the  buyer,  as,  for  instance,  the 
administrator  of  a  deceased  buyer's  estate.^" 

To  recapitulate,  the  fact  that  the  goods  are  or  are  not 
in  motion  seems  to  have  no  effect  in  determining  whether 
or  not  they  are  in  transit.  Neither  does  the  character  of 
the  person  in  possession — i.  e.,  his  character  as  a  trans- 
porter,  a   forwarder,   or   a    warehouseman — have    any 

139 — Buckley     v.     Furniss,     15  method  of  getting  to  original  one; 

Wend.   (N.  Y.)   137;    Blackman  v.  Bethell  v.  Clark,  20  Q.  B.  Div.  615. 

Pierce,  23  Cal.  508;  Hepp  v.  Glov-  no-Kingman    &    Co.   v.    Deni- 

er,  15  La.  461;   Hause  v.  Judson,  ^^^^  g^  ^.^^^   g^g^  ^^  L.  R.  A.  347, 

4  Dana  (Ky.)  7;  Chandler  v.  Ful-  ^^^.^^^^  ^^  mortgagees  of  the  buy- 

ton,  10  Tex.  2,  buyer's  instructions      ^„  „  ,  „  ,  „  ,   +„i,„„   r,^oc,^oc;^«   ^* 

er  who   had   taken   possession  of 
to  intermediary  to  "hold  onto  the      ■..    „^^-.^ 

goods  until  he  should  order  them  g^^  ^^   assignee   or  trustee   in 

away-    held    not    to    end    transit,      ^^j^kruptcy     does     represent    the 

Frame   v.   Oregon   Liquor  Co.,   48      ^^^^^^  ^^  ^^^^.^  g^^^^^^  258  Fed. 


Ore.    272,    goods    in    hands    of   a 

teamster  ordered  by  buyer  to  get 

them    from    the    freight   depot   to 

which    they    had    been    consigned 

held    still    in    transit.      This    case 

goes  further  than  others.    Hays  v. 

Mouille  &  Co.,  14  Pa.  48;  Cablen  v.  141— Jacobs  v.  Bentley,  86  Ark. 

Campboll,   30   Pa.    255,   distinction       186;    Conyers   v.    Ennis,    2   Mason 

between     new     destination     and      236. 


688;  McElroy  v.  Seery.  61  Md. 
389;  Cf.,  however,  Tufts  v.  Syl- 
vester, 79  Me.  213,  holding  a 
"bankruptcy  messenger"  not  to 
represent  the  buyer. 


THE  SELLER'S  RIGHTS  141 

apparent  effect  on  the  decision.  The  one  really  indica- 
tive circumstance  that  can  be  deduced  from  the  cases 
is  the  contract  relation  through  which  the  holder  of  the 
goods  is  in  possession.  If  his  possession  is  one  of  con- 
tract, directly  or  indirectly,  with  the  seller  it  indicates 
that  he  holds  as  a  link  in  the  transit.  If  his  possession 
is  under  a  contract  with  the  buyer,  it  strongly  indicates 
that  the  buyer,  has  received  possession — through  his 
agent — and  the  transit  is  at  an  end. 

If  the  goods  are  not  consigned  to  the  buyer  at  all,  but 
to  a  buyer  from  him,  to  whom  he  has  ordered  them 
shipped,  they  would  nevertheless  seem  technically  to  be 
in  transit,  so  far  as  the  right  of  stoppage  is  concerned, 
until  they  reach  the  possession  of  the  person  to  whom 
they  are  consigned.  This  case  occurs  when  the  buyer 
gives  instructions  for  the  seller  to  make  delivery  to 
some  third  person  instead  of  to  the  buyer  himself.  In 
such  case  the  third  person  would  seem  to  stand  in  place 
of  the  buyer,  and  the  goods  to  be  in  transit  until  they 
have  come  into  the  possession  of  such  representative  of 
the  buyer.  Thus,  if  the  original  buyer  has  resold  and 
thereafter  directs  the  seller  to  ship  to  his  buyer,  the 
transit  is  between  the  original  seller  and  the  second 
buyer ;  but  until  the  goods  have  reached  the  sub-buyer  it 
can  not  be  said  that  they  have  come  into  the  hands  of 
either  the  buyer  or  of  any  possessory  agent  of  his.  They 
are,  therefore,  logically  still  in  transit.'^*^  The  decided 
cases,  however,  are  against  this  position,  and  hold  that 
the  right  of  stoppage  does  not  exist  after  shipment  to 
the  sub-buyer.^" 

142 — Compare  Ex  parte  Golding,  directly  to  the  sub-buyer.     In  the 

13   Ch.   Div.   628.  former   case,    there    is    no    doubt, 

143 — There  are  two  ways  in  from  the  authorities  already  cited, 
which  the  case  might  arise: — the  but  that  the  goods  would  be  sub- 
buyer  might  order  the  goods  sent  ject  to  stoppage  any  time  before 
to  some  agent  or  representa-  they  reached  the  consignee  named, 
tive  of  his,  instead  of  to  him-  Such  a  transit  is  truly  one  be- 
self;  or  the  buyer,  having  resold  tween  the  seller  and  buyer  as 
the  goods,  might  order  them  sent  represented  by  his  agent.     But  in 


142  THE  LAW  OF  SALES 
Termination  of  Transit  of  Part  of  the  Goods. — De- 


livery to  the  buyer,  or  his  possessory  agent,  of  a  part  of 
the  goods  does  not  necessarily  put  an  end  to  the  transit  of 
the  rest  of  a  single  shipment.  If,  however,  the  delivery 
of  the  part  is  of  symbolic  import  from  which  can  be  im- 
plied a  new  contract  under  which  the  carrier  holds  the 
rest  no  longer  as  carrier  for  the  seller,  but  as  possessory 
agent — even  though  still  a  carrier — of  the  buyer,  then 
the  transit  is  at  an  end  because  the  goods  are  in  the  actual 
possession  of  the  buyer  through  the  possession  of  his 
agent  for  that  purpose.^** 

Transit  as  Affected  by  Acts  of  Outsiders.— The  fact 


that  the  goods  have  been  taken  from  the  actual  possession 
of  the  carrier,  by  some  one  other  than  the  buyer  or  his 
agent,  does  not  terminate  the  transit.  The  most  usual 
case  of  this  is  the  attachment  by  creditors  of  the  buyer 
of  goods  still  in  the  carrier's  hands,  and  the  consequent 
taking  possession  of  them  by  the  sheriff  or  other  legal 
officer.  It  is  uniformly  held  that  such  attachment  and 
change  of  possession  does  not  defeat  the  seller's  right 
to  retake  in  case  of  the  buyer's  insolvency.     It  makes 

the   second   case   there   is   doubt,  seller  have  not  reached  the  pos- 

The   spirit   of  the  rule   certainly  session  of  anyone,  other  than  the 

justifies  stoppage  in  such  a  case,  carrier,  they  must  still  be  in  tran- 

The  goods  are  just  as  logically  in  sit  to  the  buyer  or  his  representa- 

transit  from  seller  to  buyer  when  tive.    The  authority  is  scanty,  but 

the  consignee  is  one  to  whom  the  what  exists  holds  that  the  right 

buyer  has  sold  them  as  when  the  to    stop    does    not   exist    in    such 

consignee  is  one  whom  the  buyer  cases.    The  theory  of  the  decisions 

has  authorized  otherwise  to  repre-  is  not  clear.    Neimeyer  v.  Burling- 

sent  him.     There   is   no   question  ton,  etc.  R.  R.,  54  Neb.  321;   Shep- 

involved  of  the  equity  of  such  sub-  ard  v.  Burroughs,  62  N.  J.  L.  469; 

buyer,    because    the    courts    have  Eaton  v.  Cook,  32  Vt.  58;  Memphis 

consistently    held    that    one    who  etc.   R.   R.   Co.   v.   Freed,  38  Ark. 

buys  from  a  buyer  not  in  posses-  614;      Treadwell     v.     Aydlett,     9 

sion  even  of  a  bill  of  lading  gets  Heisk.  (Tenn.)  388. 
no  equity  that  will  defeat  the  orig-  144 — Buckley     v.     Furniss,     15 

inal  seller's  right  to  stop  in  tran-  Wend.     (N.    Y.)     137;    Tanner    v. 

Bit.      The    question    is,    therefore,  Scovell,  14  M.  &  W.  28;  Ex  parte 

solely   one    of   the   transit.      Logi-  Falk,  14  Ch.  Div.  446;  7  App.  Ca. 

cally,  since  the  goods  sent  by  the  573. 


THE  SELLER'S  RIGHTS  143 

no  difference  at  what  time  the  debts  of  the  attaching 
creditors  accrued — unless  they  were  misled  by  a  bill  of 
lading  in  the  buyer's  hands,  a  matter  which  is  discussed 
hereaftcr.^'*^  If  before  the  seller  acts,  the  goods  have 
been  sold  under  the  attachment  proceedings,  the  right 
of  the  seller  still  attaches  to  the  money  in  the  hands 
of  the  court. ^*'' 

If  the  seller  himself  takes  the  goods  on  attachment 
against  the  buyer  the  result  is  not  certain.  It  is  said 
that  by  so  doing  he  does  not  preclude  a  stoppage,  since 
stoppage  does  not  affect  the  buyer's  title  and  is  not 
inconsistent  with  attaching  them  as  the  buyer's  goods. ^^'^ 
The  stoppage  in  transitu  does,  however,  revest  the 
seller  w^tli  his  lien,  and  it  might  w^ell  be  said  that  attach- 
ment is  inconsistent  with  a  lien.^*^ 

If,  however,  the  goods  should  be  taken  from  the  carrier 
by  the  buyer  himself,  or  his  representative,  the  transit 
would  have  come  to  an  end  even  though  the  destina- 
tion  originally  intended  had  not  been   reached.^** 

Carrier's  Lien. — The  seller's  right  to  possession  is 


subordinate  to  the  carrier's  lien  for  freight  on  the  partic- 
ular shipment,  although  superior  to  a  carrier's  general 

lien  for  other  freight. ^^°    In  this  connection,  an  unusual 

145 — Post,  p.  221.  But  compare  Fox  v.  Willis,  60  Tex. 

146— O'Brien  v.  Norris,  16   Md.  373;  Woodruff  v.  Noyes,  15  Conn. 

122;  Blum  &  Co.  v.  Marks,  21  La.  335. 

An.  268;  Bayonne  Knife  Co.  v.  Um-  148 — See  ante,  p.  120. 

benhauer,   107  Ala.   496;    Hepp  v.  149 — Hays  v.  Mouille  &  Co.,  14 

Glover,  15  La.  461;  Hause  v.  Jud-  Pa.  48;  Walsh  v.  Blakely,  6  Mont, 

son,  4  Dana   (Ky.)   7,  attaches  to  194;    Cabeen  v.   Campbell,  30  Pa. 

money   made    by    sale;    Smith    v.  254;   Halff  v.  Allyn,   60  Tex.  278; 

Goss,    1    Camp.    282;    Calahan    v.  Mecham  &  Son  v.  N.  E.  R.  R.  Co., 

Babcock,  21  O.  S.  281;   Frame  v.  48  Scot.  L.  R.  987,  applying  statute; 

Oregon   Liquor   Co.,   48   Ore.    272,  Whitehead   v.   Anderson,   9   M.    & 

unaffected  by  sale  of  goods  under  W.   518. 

attachment  proceedings;   Hays  v.  150 — Rucker     v.     Donovan,     13 

Mouille  &  Co.,  14  Pa.  48;  White  v.  Kan.  251;  Farrell  v.  Richmond,  etc. 

Mitchell,  38  Mich.  390.  R.  R.,  102  N.  C.  390,  3  L.  R.  A.  647, 

But    cf.    Couture    v.    McKay,    6  general   lien;    U.    S.    Steel   Co.  v. 

Manitoba  L.  R.  273.  Great  Western  Rr.,  L.  R.  1  A.  C. 

147— Allyn  v.  Willis,  65  Tex.  65;  189,  general  lien. 


144  THE  LAW  OF  SALES 

case  was  decided  by  the  English  court  in  Booth  Steam- 
ship Co.  V.  Cargo  Fleet  Co.^^^  The  action  was  by  the 
carrier  against  the  seller  to  recover  freight  charges. 
The  seller  had  ordered  the  delivery  witliheld  from  the 
buyer,  but  showed  no  desire  to  get  possession  of  the 
goods  from  the  carrier.  As  the  goods  had  been  shipped 
in  the  name  of  the  buyer  and  as  his  property,  there 
was  no  contract  for  freight  between  the  seller  and 
the  carrier.  The  buyer,  however,  was  insolvent  and, 
because  of  the  stoppage,  not  entitled  to  possession, 
and  the  carrier's  lien  as  against  his  goods  for  freight 
was  practically  worthless.  The  court  treated  the 
matter  as  ' '  a  novel  and  interesting  point  of  law,  of  some 
interest  to  carriers  and  merchants,"  mthout  analogous 
precedent,  and  by  viewing  the  merits  of  the  case  declared 
the  seller  to  be  liable. 

Exercise  of  Right. — An  attempted  stoppage  by  the 


seller  gives  him  no  right  against  the  goods  if,  despite  his 
attempt,  they  have  come  into  the  buyer's  possession,  at 
least  in  the  absence  of  actionable  wrong-doing  of  the 
buyer.  That  is  to  say,  so  far  as  the  right  of  repossession 
of  the  goods  is  concerned,  stoppage  in  transitu  means  an 
actual  retaking  of  the  goods  before  they  reach  the  buy- 
er's possession,  and  not  a  mere  attempt  to  retake  pos- 
session.^^^ 

In  the  event  of  unsuccessful  attempt,  the  seller  must 
look  to  the  carrier  for  recompense  for  the  latter 's  wrong- 

151—115  L.  T.  R.  199.  Mottram  v.  Heyer,  5  Denio  (N.  Y.) 

152 — See  authorities  in  preced-  629.    Northey  v.  Field,  2  Esp.  613. 

ing  notes.     But  in  Litt  v.  Cowley,  This   position   would   be  sound   if 

7   Taunton    168,    it  was   precisely  it  were  the  rule  that  stoppage  in 

held  that  the  seller's  attempt,  by  transitu,    or   an   attempt   to   stop, 

notification  to  the  carrier,  to  stop  amounted   to   a   rescission   of  the 

the  goods  amounted  to  such  a  res-  contract.    The  accepted  rule,  how- 

cission  of  the  contract  as  deprived  ever,  is  that  it  does  not  revest  title 

the  buyer,  to  whom  at^tual  delivei-y  in  the  seller  but  merely  re-estab- 

was  made,  of  the  right  of  posses-  lishes  his  lien, 
slon.       Apparently     approved     in 


THE  SELLER'S  RIGHTS  145 

ful  action  in  delivering  despite  the  seller 's  order  to  stop. 
But  to  fix  any  such  liabiUty  on  the  carrier  the  seller  must 
have  given  him  notice  not  to  deliver  to  the  consignee. 
This  proposition  is  so  obvious  and  elementary  that  it 
seems  to  have  given  rise  to  no  litigation. ^^^ 

The  notice  to  the  carrier  need  not  be  accompanied 
with  a  demand  for  possession ;  mere  notice  not  to  deliver 
to  the  consignee  is  sufficient  to  bind  the  carrier.^^*  The 
seller  may  of  course  give  notice  through  his  own  agent, 
as  in  other  cases,^^^  and  **if  the  carrier  is  clearly  informed 
that  it  is  the  intention  and  desire  of  the  vendor  to  exer- 
cise his  right  of  stoppage  in  transitu,  the  notice  is 
sufficient "."« 

The  notice  must  be  brought  home  to  the  principal  per- 
son in  possession  of  the  goods,  but  the  customary  rules 
of  agency  apply  here  and  fix  the  relations  of  the  various 
persons  connected  with  the  carriage  and  notice  to  an 
agent  is  notice  to  the  principal.  So,  "notice  to  the  agent 
of  the  carrier,  who  in  the  regular  course  of  his  agency 
is  in  actual  custody  of  the  goods  at  the  time  the  notice  is 
given,  is  notice  to  the  carrier. '  '^" 

There  is  surprisingly  little  authority  in  respect  to  the 
mode  of  giving  notice  and  the  persons  to  whom  and 
through  whom  it  must  be  given.  Beyond  the  fact  that 
notice  must  be  given  to  the  carrier,  whether  individual 
or  association,  in  possession  of  the  goods,  in  reasonable 
time  for  it  to  get  instructions  to  its  employees  to  with- 

153 — That  the  carrier  is  liable      charge    the    carrier."      Jones    v. 
for  delivery  after  notice  to  with-     Earl,    37    Cal.    630;    Reynolds    v. 
hold  it,  see  Rosenthal  v.  Weir,  170      R.  R.,  43  N.  H.  580. 
N.   Y.    148,    and   this   liability    is 
founded  in  tort,  regardless  of  the 
contract     for     carriage.         Booth 


155— Reynolds  v.  R.  R.,  43  N.  H. 
580;  Newhall  v.  Vargas,  13  Me. 
93,    notice    by   unauthorizd    agent 


Steamship  Co.  v.  Cargo  Fleet  Iron      ^„„  ,  „  ^„*-«..j.  /->u      j,  t-.  i 

may  be  ratified     Chandler  v.  Ful 

Co.,    115   L.    T.    R.    199,    201;    The 


Tigress,  8  L.  T.  R.  117;   Pontifex 


ton,  10  Tex.  2,  60  Am.  Dec.  188; 

^.      „  Whitehead  v.  Anderson,  9  M.  &  W. 

V.  Midland  Ry.,  3  Q.  B.  Div.  23.  g^,^ 

154 — "A  notice  by  the  vendor, 
without  an  express  demand  to  re-  156- Jones  v.  Earl,  37  Cal.  630. 

deliver  the  goods,  is  suflScient  to         157 — Jones  v.  Earl,  37  Cal.  630. 


146  THE  LAW  OF  SALES 

hold  delivery,  nothing  definite  can  be  said.  As  to  what 
employees  can  receive  notice  so  as  to  bind  the  employer; 
when  notice  given  to  one  carrier  will  bind  another  car- 
rier cooperating  in  the  transit;  how  far  the  carrier  is 
obliged  to  notify  another;  what  is  reasonable  time;  and 
kindred  matters,  the  accepted  rules  of  agency  are 
undoubtedly  guiding  analogies."^* 

Effect  of  Stoppage.— The  effect  of  a  stoppage  in 
transitu  was  at  one  time  in  some  doubt  and  some  early 
decisions  are  in  marked  conflict  with  the  later  ones. 
There  was  among  the  former  a  tendency  to  treat  a  stop- 
page, even  without  actual  retaking  of  possession,  as  a 
rescission  of  the  contract,  whereby  the  title  was  auto- 
matically revested  in  the  seller.^^^  The  rule  now 
accepted,  however,  is  without  question  that  neither  an 
attempted  nor  accomplished  stoppage  is  a  rescission  of 
the  contract,  but  that  the  right  to  stop  delivery  and  retake 
possession  is  a  m.ere  extension  of  the  seller's  lien,  that  is 
to  say,  of  his  right  to  retain  possession  till  paid.  The 
history  of  this  rule  is  discussed  in  Babcock  v.  Bonnell,^^*^ 
and  the  conflict  of  authority  pointed  out.  In  conclusion 
that  court  says,  "The  question  has  never  been,  that  I 
am  aware,  definitely  decided  in  this  State.  As  an  original 
question  the  doctrine  of  rescission  commends  itself  to  my 
judgment  as  being  more  simple,  and,  in  most  cases,  more 
just  to  both  parties  than  the  notion  that  the  act  of  stop- 
page is  the  exercise  of  a  right  of  lien,  but  in  deference 
to  the  prevailing  current  of  authority,  I  should  hesitate 
in  attempting  to  oppose  it  by  any  opinion  of  my  own. '  '^^^^ 

158 — Time  must  be  allowed  for  159 — Ante,  p.  144. 

the  notice  to  be  passed  on  from  160 — SO  N.  Y.  244. 

the    person    receiving    it    to    the  161 — Resumption   of   lien,   only, 

person     actually     in     control     of  Chandler   v.    Fulton,    10    Tex.    2; 

the  goods,  Whitehead  v.  Anderson,  Allyn  v.  Willis,  65  Tex.  65;  Dough- 

9  M.  &  W.  517.  erty  Bros.  v.  Central  National  Bk., 

♦See  Uniform  Sales  Act,  Section  59,  (1),  (2). 
tSee  Uniform  Sales  Act,  Sections  57,  61. 


THE  SELLER'S  RIGHTS  147 

Since  stoppage  in  transitu  merely  reinstates  the  seller 
in  the  position  of  a  lienor,  his  rights  thereafter  are  iden- 
tical with  those  already  discussed  as  appertaining  to  an 
unpaid  seller's  lien  and  need  not  be  again  set  out  here.^^* 

4.     Neither  Title  nor  Possession  Retained  ' 

Recovery  of  Price. — When  the  seller  has  parted  with 
both  title  and  possession  he  has  the  same  right  to  sue 
the  buyer  for  the  purchase  price  as  in  any  case  when  the 
title  has  passed.^^^ 

Recovery  of  Possession. — He  has  no  longer,  however, 
any  right  at  all  in  respect  to  the  goods  themselves.  All 
his  right  of  possession  has  ceased  with  his  loss  of  actual 
possession.  Though  the  buyer  may  flatly  refuse  to  pay 
and  even  though  he  may  have  become  insolvent  and  un- 
able to  pay,  the  seller  can  not  retake  possession,  in  the 
absence  of  fraud.^^*  This  is  true  even  in  equity  ;^^^  and 
even  though  the  buyer  was  insolvent  at  the  time  the  con- 
tract was  entered  into,  and  knew  himself  to  be  insolvent, 
the  seller  who  has  parted  with  both  title  and  possession 
can  not  retake  the  goods.  ^^^ 

The  whole  idea  is  that  the  buyer  has  become  the  owner 
of  the  property  and  the  seller  a  mere  creditor  to  the 

93   Pa.   227;    Jordan  v.   James,   5  v.  Lewis,  218  Pa.  141;   Thompson 

O.  88,  99;    Newhall  v.  Vargas,  13  v.  Conover,  32  N.  J.  L.  466,  even  as 

Me.  93;  Diem  v.  Koblitz,  49  O.  S.  to    goods    delivered    in    part    per- 

41;  Kearney  v.  Union  Pac.  Rr.  Co.,  formance  only;  Makaness  v.  Long, 

97  Iowa  719,  59  Am.  St.  434.  85   Pa.   158;    Neal   v.    Boggan,    97 

162-See  ante,  p.  122.  ^^^-  ^^^'  Holland's  Assee.  v.  Cin- 

cinnati  Co.,  97  Ky.  454. 

163— See  ante,  p.  109.    He  is  not  165— Godwin  v.   Phifer,  51  Fla. 

limited  to  the  actual  value  of  the  442. 

goods.    Brown  v.  Harris,  139  Mich.  I66— Bell  v.  Ellis,  33   Cal.   620; 

2'^2-  Houghtaling  v.  HiHs,  59  Iowa  287; 

164— Smith  Lumber  Co.  v.  Scott  Franklin  Sugar  Co.  v.  Collier,  89 

County    Co.,    149    Iowa    272,    30  la.  69;  Freeman  v.  Toplds,  1  Marv. 

L.  R.  A.   (n.  s.)   1184;   Kramer  v.  (Del.)   174;   Walsh  v.  Leeper  Co., 

Messner,    101    Iowa    88;     Thomp-  Tex.    50    S.    W.    630;     Talcott    v 

Bon  V.  Wedge,  50  Wis.  642;  Freeh  Henderson,  31  O.  S.  162. 


148  THE  LAW  OF  SALES 

amount  of  the  purchase  price.  As  the  seller  has  no  pos- 
session of  the  goods,  he  is  in  no  better  position  than  is 
any  other  creditor.  He  is  simply  an  unsecured  creditor 
with  the  rights  and  remedies  of  all  unsecured  creditors. ^^' 

Recovery  of  Value  of  Goods. — The  seller  can  not  in 
such  circumstances  sue  even  for  the  value  of  the  goods. 
He  has  become  entitled  to  the  purchase  price,  as  a  debt 
owing  from  the  buyer,  and  he  is  restricted  to  the  cus- 
tomary methods  of  suing  on  account  of  this  debt.^^^  If, 
however,  the  seller  has  only  in  part  performed  an  entire 
contract  at  the  time  of  the  buyer's  breach,  he  is  not  yet 
entitled  to  the  full  purchase  price.  In  such  case,  if  he 
does  not  choose  to  sue  simply  for  his  damages  for  breach 
of  contract,  he  may  bring  an  action,  on  the  order  of 
quasi-contract,  for  the  actual  value  of  such  goods  as  have 
passed  to  the  buyer.^^^ 

Rescission  Because  of  Fraud. — ^When,  however,  the  sale 
has  been  induced  by  the  fraud  of  the  buyer,  the  seller 
can  rescind  the  whole  transaction  and  revest  title  to  the 
property  in  himself,  and  having  revested  title  in  himself 
he  can  maintain  replevin  or  otherwise  repossess  himself 
of  the  goods,  as  owner. 

When  the  issue  is  between  the  seller  and  buyer,  with- 
out relation  to  third  persons,  the  courts  seem  to  be  in 
some  confusion  as  to  whether  or  not  the  effect  of  the  fraud 
is  such  as  to  make  the  sale  void,  so  that  no  title  at  all 
ever  passed  to  the  buyer,  or  merely  voidable,  so  that  title 

167 — This  has  been  ameliorated  168 — Woodward,  Quasi  C  o  n- 
by  statute  in  some  states  to  the  tracts,  sec.  263. 
extent  of  providing  that  statutory  169 — Wilson  v.  Wagar,  26  Mich, 
exemptions  shall  not  apply  to  452;  Willston  Coal  Co.  v.  Frank- 
property  for  the  purchase  price  of  lin  Paper  Co.,  57  O.  S.  182; 
which  the  judgment  was  secured.  Thompson  v.  Gaffey,  52  Neb.  317, 
Howell  V.  Crawford,  77  Ark.  12;  option  to  sue  for  breach  of  con- 
Roach  V.  Johnson,  71  Ark.  344,  tract  or  quantum  valebit;  U.  S. 
right  to  sequester  pendente  lite;  v.  Molloy,  127  Fed.  953;  Bartholo- 
Bartou  v.  Sitlington,  128  Mo.  164.  mew  v.  Markwick,  15  C.  B.   (n.  s.) 

711,  109  Eng.  Com.  L.  711. 


THE  SELLER'S  RIGHTS  149 

does  pass  to  the  buyer  but  subject  to  defeasance  by  the 
seller  if  he  so  desires.  It  is  very  common  expression 
of  the  courts  to  refer  to  the  sale  as  "void",  but  often, 
too,  it  is  spoken  of  as  "voidable".  It  is  in  fact,  however, 
treated  as  "void"  in  many  decisions,  notably  those 
which  allow  a  suit  in  replevin  to  be  maintained  without 
any  formahty  of  rescission,  even  by  way  of  demand  upon 
the  buyer.^'^'^ 

On  the  other  hand,  it  is  very  evident  in  some  cases 
that,  even  as  between  the  parties,  the  courts  consider 
a  title  to  have  passed,  subject  to  defeasance.^'^  Such 
are  the  cases  in  which  it  is  held  that  a  defrauded  seller 
who  might,  on  account  of  the  fraud,  have  rescinded  the 
contract  has  lost  his  right  to  repossession  of  the  goods 
because  of  undue  delay  in  acting.  The  courts  do  not 
give  specific  reasons  for  this,  but  the  only  harmoniously 
logical  basis  for  it  must  be  that  title  passed  by  virtue  of 
the  original  contract;  that  the  right  to  defeat  it  was  lost 
by  the  delay  and  not  that  it  passed  by  the  delay. ^""^  That 
title  did  pass  by  virtue  of  the  agreement,  although  sub- 
ject to  avoidance,  must  be  the  basis  also  of  those  cases 
recognizing  suit  for  the  purchase  price  as  an  affirmance 
of  ih.e  buyer's  title;  and  of  those  similar  cases  in  which 
the  seller  is  held  to  have  "ratified"  the  contract  so  as 
to  fix  title  in  the  buyer.^''^' 

The  net  result  appears  to  be  that,  as  between  the  par- 

170 — Butters  v.   Haughewat,  42  Missouri  Pac.  R.R.,  52  Mo.  Ap.  407; 

III.  18;  Oswego  Starch  Co.  v.  Len-  McDonald  v.  Goodkind,  22  Mont, 

drum,     57     Iowa     573;     Root     v.  491;    Smith  v.   Chadron  Bank,   45 

French,    13    Wend.    (N.    Y.)    570;  Neb.  444;  Wertheimer  etc.  Co.  v. 

Hunter  v.  Hudson  River  etc.  Co.  Faris,  Tenn.,  46  S.  W.  336;   Load 

20  Barb.    (N.   Y.)    493;    Loeffel  v.  v.  Green,  15  M.  &  W.  216. 

Pohlman,  47  Mo.  Ap.  574.  173— Moller  v.  Tuska,  87  N.  Y. 

171— When   the  rights  of  third  166;    Conrow  v.  Little,   115  N.  Y. 

persons   are    under   consideration  387;  Little  Rock  Bk.  v.  Frank,  63 

there    is    no   doubt   but    that   the  Ark.  16;   Gallup  v.  Fox,  64  Conn, 

transaction  is  considered  as  hav-  491;   Mapes  v.  Burns,  72  Mo.  Ap. 

ing  passed  a  title.  See  jyost.  p.  225.  411;   Chadron  Natl.  Bk.  v.  Tootle, 

172— World  Pub.  Co.  v.  Hull,  81  59  Neb.  44;  Seeley  v.  Seeley-Howe 

Mo.  Ap.  277;   Johnson  etc.  Co.  v.  Co.,  130  Iowa  626. 


150  THE  LAW  OF  SALES 

ties,  the  court  will  treat  the  title  as  not  having  passed 
at  all  if  the  seller  wishes  it  so  treated,  and  acts  thereon 
in  time,  or  as  having  actually  passed,  if  the  seller  desires 
so  to  consider  it.^'* 

What  Constitutes  Fraud. — ^What  acts  of  the  buyer 


will  amount  to  a  fraud  upon  the  seller  is  a  question  of  law 
to  be  decided  by  the  court;  whether  those  acts  were  in 
truth  committed  by  the  buyer  is  a  question  of  fact  for 
the  jury.^'^  As  we  have  already  seen,  mere  concealment 
of  insolvency  is  not  of  itself  such  fraud  as  will  permit 
rescission.^'^  An  intent,  existing  at  the  time  of  purchase, 
not  to  pay  for  the  goods  is,  however,  such  fraud.  The 
intent  must  be  not  to  pay  at  all.  "A  mere  intent  not  to 
pay  for  the  goods  when  the  debt  becomes  due  is  not 
enough;  that  falls  short  of  the  idea.  The  inquiry  is 
not  whether  the  buyer  had  reasonable  grounds  to  believe 
he  could  pay  the  debt  at  some  future  time,  and  in  some 
way,  but  whether  he  intended  in  point  of  fact  not  to 
pay  it."^''"'  If  he  did  not  intend  to  pay,  there  is  such 
fraud  as  will  justify  rescission.^''^'  And  the  fact  that  a 
buyer  knows  he  is  insolvent  at  the  time  of  purchase  mil 
be  considered  as  evidence  in  respect  to  his  intention. 
It  ''bears  upon  the  question  of  quo  animo,  the  intent, 
the  fraudulent  purpose.""^ 

174— Clough  V.   London   &  Nw.  175— Freeman  v.  Topkis,  1  Marv, 

Ry.  Co.,  L.  R.  7  Ex.  26,  p.  34.     It  (Del.)  174. 

should  be  noted  that  the  seller  can  176 — Ante,  p.  147. 

not  so  far  treat  the  transaction  as  177 — Burrill  v.  Stevens,  73  Me. 

void  but  that  he  must  return  to  395. 

the  buyer,  before  he  can  insist  on  178 — Osvi^ego  Starch  Factory  v. 

possession  of  the  goods  sold,  what-  Lendrum,  57  Iowa  573;  Belding  v. 

ever    of    value    he    has    received.  Frankland,     8    Lea     (Tenn.)     67; 

Doan   V.   Lockwood,   115   111.   490;  Hennequin    v.    Naylor,    24    N.    Y. 

Moriarity  v.  Stofferan,  89  111.  528.  139;    Talcott  v.  Henderson,  31  O. 

But  an  unnegotiated  note  is  not  S.  162. 

considered  as  a  thing  of  value  in  179 — Rowley  v.  Bigelow,  12  Pick, 

this  sense,  Thurston  v.  Blanchard,  (Mass.)    307;    Talcott   v.    Hender- 

22    Pick.    (Mass.)    18;    Nichols    v.  son,    31    O.    S.    162;     Belding    v. 

Michael,  23  N.  Y.  264.  Frankland,  8  Lea  (Tenn.)  67. 


THE  SELLER'S  RIGHTS 


151 


While  mere  concealment  of  insolvency  is  not  fraud, 
any  positive  misrepresentation,  either  express  or  by 
implication,  may  amount  to  fraud."°  This  is  true  even 
though  the  buyer  be  really  solvent."^ 

Misrepresentation  in  respect  to  financial  condition  is, 
of  course,  not  the  only  fraud  that  will  make  a  sale  void- 
able. This  is  simply  the  most  frequent  type  of  case.  In 
general,  any  actual  fraud  in  the  inducement  of  the  con- 
tract will  permit  of  its  rescission. 


180— Schweizer  v.  Tracy,  76  111. 
345;  Weitheimer  etc.  Co.  v.  Faris, 
Tenn.,  46  S.  W.  336;  Skinner  v. 
Michigan  Hoop  Co.,  119  Mich.  467; 


Seeley  v.    Seeley-Howe   Co.,    130 
Iowa  626. 

181 — Richardson     etc.     Co.      v. 
Goodkind,  22  Mont.  462. 


CHAPTER  IV 

Buyer's  Remedies  and  Rights 
1.    Neither  Title  nor  Possession  Acquired 

The  discussion  of  the  seller's  rights  and  remedies  has 
necessarily  suggested  the  lack  of  right  in  the  buyer  which 
is  the  converse  of  the  seller's  rights.  Obviously,  for 
instance,  if  the  seller  has  a  right  of  continued  possession 
until  payment,  the  buyer  has  no  right  of  possession  until 
payment.  Likewise,  whenever  the  seller  has  no  right  to 
rescind  a  sale  and  take  back  the  goods  because  of  non- 
payment the  buyer  has  a  right  to  keep  the  goods  with- 
out paying  for  them.  These  so  obvious  converse  rights 
need  not  be  repeated  by  positive  expression.  On  the 
other  hand,  a  discussion  of  other  rights  and  remedies 
of  the  buyer  will  develop  by  their  implied  converse  cer- 
tain lack  of  right  in  the  seller  which  was  not  referred  to 
under  the  particular  topic  heading. 

Breach  of  Contract. — If  neither  title  nor  possession  has 
passed  to  the  buyer,  he  has  acquired  no  right  in  respect 
to  the  property  itself.  If  the  seller  fails  to  perform 
according  to  the  terms  of  the  contract,  the  buyer  is  lim- 
ited to  an  action  against  him  personally  for  breach  of 
contract.  Having  no  title,  the  buyer  can  not  bring 
replevin  or  other  possessory  action  on  the  ground  of 
title,  and  the  law  recognizes  no  other  right  of  possession 
as  a  result  merely  of  the  contract  of  sale.*    Even  equity 

1— Deutsch  V.  Dunham,  72  Ark.  contract,  by  refusing  or  failing  to 

141;   Backhaus  v.  Buells;  43  Ore.  give  the  plaintiffs   possession   of 

558;    Chellis  v.  Grimes,  72  N.  H.  the  property  ♦  *  *  did  not  trans- 

104,  "The  mere  fact  that  defend-  fer  the  title  to  the  plaintiffs.  Their 

ants  committed  a  breach  of  their  refusal  to  deliver  the  property  was 

152 


THE  BUYER'S  RIGHTS 


153 


will  not  grant  specific  performance  except  in  certain  cases 
of  sale  of  an  absolutely  unique  chattel.** 

Measure  of  Damages. — If  the  buyer  does  sue  for 


breach  of  contract  his  measure  of  damage  is,  in  accord 
with  the  general  rule  of  damages,  the  sum  which  mil  put 
him  in  the  same  position  financially  as  though  the  contract 
had  been  carried  out.  But  this  basic  principle  is,  as  usual, 
modified  by  the  rule  that  the  buyer  must  mitigate  his 
damage  so  far  as  possible  and  must  accordingly  be  pre- 
sumed to  have  protected  himself  as  soon  after  the  seller's 
breach  as  he  could  reasonably  be  expected  to  do  and  by 
all  reasonable  means.  Accordingly,  the  measure  of  his 
damage  will  be  the  difference  between  the  price  at  which 
the  seller  had  contracted  to  sell  and  the  price  at  which 
the  buyer  could  buy  precisely  similar  goods  in  the  market 
within  a  reasonable  time  after  his  knowledge  of  the 
seller's  breach.'* 


not  equivalent  to  a  performance 
on  their  part.  *  *  *  Nor  did  the 
plaintiffs  have  the  legal  right  of 
possession,  since  that  right  fol- 
lowed the  title,  which  they  never 
had."  Carpenter  v.  Glass,  67  Ark. 
135;  Platter  v.  Acker,  13  Ind.  Ap. 
417;  Gibson  v.  Roy,  28  Ky.  L.  R. 
444. 

2 — There  is  some  conflict,  how- 
ever, as  to  whether  or  not  equity 
will  decree  specific  performance 
In  cases  where  the  buyer  has  paid 
his  money  and  the  seller  has  be- 
come Insolvent.  Livesley  v.  Johns- 
ton 45  Ore.  30,  "When,  therefore, 
an  award  of  damages  would  not 
put  the  party  seeking  equitable  re- 
lief for  the  delivery  of  personalty 
In  a  situation  as  beneficial  as  if 
the  agreement  were  specifically 
performed,  or  where  compensa- 
tion and  damages  would  fall  short 
of  the  redress  to  which  he  is  en- 

*See  Uniform  Sales  Act,  Section 


titled,  the  jurisdiction  (of  equity, 
for  specific  performance)  is  prop- 
erly invoked,  otherwise  not.  *  *  * 
Insolvency  of  the  party  against 
whom  relief  is  sought,  standing 
alone,  will  not  confer  jurisdiction 
to  enforce  specific  performance. 
*  *  *  The  fact  of  insolvency, 
when  combined  with  other  causes 
for  equitable  interposition,  may, 
however,  become  a  potent  or  even 
controlling  factor  in  determining 
the  fact  of  jurisdiction."  As  to 
unique  chattels  see,  Lowther  v. 
Lowther,  13  Ves.  95,  painting; 
Falcke  v.  Gray,  4  Drew.  651 ;  Pusey 
V.  Pusey,  1  Vern.  273. 

3 — Saxe  v.  Penokee  Lumber  Co., 
159  N.  Y.  371;  Austrian  &  Co.  v. 
Springer,  94  Mich.  343;  Goodrich 
V.  Hubbard,  51  Mich.  530;  Grand 
Tower  Co.  v.  Phillips,  23  Wall.  471, 
price  at  nearest  available  place  of 
purchase  plus  increased  cost  of 
68. 


154  THE  LAW  OF  SALES 

This  rule  is  based  on  the  assumption  that  the  buyer 
could  purchase  similar  goods  on  the  market  reasonably- 
soon  after  the  breach,  and  thus  protect  himself  from 
damage  naturally  consequent  upon  his  failure  to  receive 
the  goods  from  the  seller.  If,  however,  he  could  not 
procure  similar  goods  soon  enough  with  reasonable 
effort,  the  rule  of  damages  as  stated  could  not  be  applied. 
In  such  case  the  amount  of  damage  would  be  the  finan- 
cial loss,  at  least,  resulting  as  a  normal  consequent  upon 
the  seller's  failure  to  perform.  But  the  burden  of  proof 
that  similar  goods  could  not  have  been  reasonably  pro- 
cured is  on  the  plaintiff.  As  illustration,  in  Parsons  v, 
Sutton*  the  claim  was  that  Parsons  had  contracted  to 
sell  to  Sutton  certain  paper  to  be  used  for  printing  a 
frontispiece  for  a  magazine;  that  Parsons  had  failed  to 
furnish  it  at  the  time  agreed;  that  Sutton  could  not  get 
other  paper  like  it  and  had  therefore  to  print  his  maga- 
zine without  a  frontispiece;  and  that  because  of  this  he 
had  suffered  financial  loss  in  decrease  of  circulation, 
waste  of  printed  matter  which  was  to  have  accompanied 
the  frontispiece  and  other  normally  consequent  results, 
'the  court  stated  that  ''the  ordinary  rule  of  damage 
*  *  *  is  the  difference  between  the  contract  price  and 
the  market  price  at  the  time  and  place  of  delivery.  When 
the  buyer  can  go  into  market  and  buy  the  article  which 
the  seller  has  failed  to  deliver,  this  is  the  only  rule,  as  it 
offers  the  buyer  full  indemnity."  The  court  further  rec- 
ognized that  "special  damages  are  allowed  when  this  rule 
will  not  furnish  full  indemnity.  If  there  is  no  market  for 
the  article  where  it  is  to  be  delivered,  and  it  can  not  be 
had  there  with  reasonable  diligence,  and  the  buyer  suffers 

transportation;   Schmertz  v.  Dwy-  As  to  delivery  by  installments, 

er,  53  Pa.  335;   David  v.  Witmer,  see  Long  Pole  Co.  v.  Saxon  etc. 

46  Pa.  Super.  307;  Tuttle  etc.  Co.  Co.,  108  Va.  497;   Hewson-Herzog 

V.    Coaldale    Co.,    136    Iowa    382;  Co.,   v.    Minnesota   Brick   Co.,   55 

Holliday    v.    Hyland,    43    Ind.    Ap.  Minn.  530. 

342;  Crescent  Mfg.  Co.  v.  Slattery,  4—66  N.  Y.  92. 

132  La.  917. 

•«ee  Uniform  Sales  Act,  Section  67,  (1),  (2),  (3). 


THE  BUYER'S  RIGHTS  155 

damage  because  of  the  seller's  failure  to  deliver,  which 
is  the  proximate  and  natural  consequence  of  such  fail- 
ure, such  damage  can  be  recovered."  But  the  buyer 
**must  not,  by  inattention,  want  of  care  or  excusable 
negligence,  permit  his  damage  to  grow  and  then  charge 
it  all  to  the  other  party." 

In  the  particular  case,  Parsons  was  ready  to  deliver 
a  few  days  after  the  time  set,  and  there  was  no  positive 
showing  that  delivery  at  that  time  would  have  been  too 
late.  Furthermore,  the  court  said,  "There  is  no  proof 
that  such  paper  as  this  contract  called  for  is  not  usually 
to  be  found  in  the  market,  or  that  it  could  not,  in  the 
small  quantity  required,  be  delivered  in  a  few  days 
by  manufacturers.  All  (Sutton)  did  was  to  go  to  deal- 
ers in  paper  a  day  or  two  after  (the  date  for  delivery) 
and  try  to  buy  paper  like  that  which  (Parsons)  was  to 
deliver,  and  they  could  find  none.  It  does  not  appear 
that  they  made  any  further  efforts.  It  does  not  appear 
that  they  could  not  find  paper  which  would  answer  sub- 
stantially the  purpose.  No  reason  is  given  why  they 
did  not  try  more  than  once  to  find  the  paper. ' '  Accord- 
ingly the  court  refused  to  allow  recovery  of  the  special 
damage.  The  case  demonstrates  clearly  the  breadth  of 
the  rule  that,  in  general,  only  the  difference  between  the 
contract  price  and  the  price  at  which  the  buyer  can 
secure  similar  goods  can  be  recovered  as  damage  for 
the  breach.  ' '  Very  rarely,  indeed,  can  there  come  a  case 
where  the  vendee  suffers  special  damages  if,  at  the  time 
and  place  of  delivery,  there  was  a  market  value  for  the 
article  purchased  by  him.  A  market  value  at  a  given  place 
presupposes  that  merchandise  of  that  character  was  at 
that  time  and  place  sold  or  offered  for  sale,  and  thus  the 
opportunity  is  presented  the  vendee  of  bujang  the  article 
in  the  open  market  to  be  used  for  the  special  purpose 
intended,  and  of  recovering  of  the  defendant  the  differ- 
ence between  such  market  value  and  the  contract  price. ' '® 

5 — Saxe  v.  Penokee  Lumber  Co., 
159  N.  Y.  371. 


156  THE  LAW  OF  SALES 

But  the  buyer  need  only  act  reasonably  in  protecting 
himself  after  the  seller's  breach.  Thus,  in  Austrian  & 
Co.  V.  Springer,®  the  seller  announced  early  in  May  that 
he  would  not  be  able  to  fulfill  his  contract,  which  called 
for  shipment  on  May  15th.  The  contention  of  the  defend- 
ant, the  seller,  was  that  the  price  of  glass  in  May  was 
lower  than  in  June,  during  the  latter  part  of  which  the 
plaintiff  had  protected  himself  by  purchasing  similar 
goods.  Evidence  showed,  however,  that  while  dealers 
would  give  a  "market  price"  during  May  and  early  June, 
they  would  not  agree  actually  to  furnish  goods  at  such 
prices ;  in  short,  that  dealers  were  dodging  definite  orders 
in  expectation  of  a  rise  in  price.  This  the  court  held 
sufficient  to  justify  fixing  the  measure  of  damages  by 
the  market  prices  of  late  June  or  July. 

The  ''market  price"  means  market  price  at  which 
the  buyer  could  purchase.  In  reversing  a  case  because 
the  trial  court  had  instructed  the  jury  to  allow  the  plain- 
tiffs the  difference  between  the  contract  price  and  the 
''wholesale"  price  at  time  of  breach,  the  Supreme  Court 
said,  "The  question  is  not  one  of  wholesale  price  or 
retail  price,  and  an  instruction  to  measure  the  damage 
by  either  might  be  erroneous.  The  true  test  of  proper 
compensation  in  such  cases  is  what  it  would  have  cost  the 
plaintiffs  to  procure  at  the  point  of  dehvery  and  at  the 
time  or  times  when  it  was  reasonable  for  them  to  supply 
themselves,  lumber  of  the  kind  and  quahty  they  were 
to  receive  on  the  contract.  *  *  *  So  large  an  amount  of 
lumber  as  was  covered  by  this  contract,  they  might, 
perhaps,  have  been  able  to  procure  at  cargo  prices ;  but 
we  have  no  right  to  presume  this,  and  if  it  were  imprac- 
ticable to  supply  themselves,  except  at  retail  rates,  they 
were  entitled  to  demand  those  rates  of  defendants."'' 
Similarly  it  has  been  held  that  if  the  buyer  has  actually 
protected  himself  by  a  purchase  below  the  reported 
"market    value"   he    can    recover   only   the    difference 

6—94  Mich.  343.  7— Haskell  v.  Hunter,  23  Mich. 

305. 


THE  BUYER'S  RIGHTS  157 

between  the  contract  price  and  what  he  actually  had  to 
pay.8 

For  a  full  discussion  of  the  amount  and  proof  of  dam- 
age the  reader  is  referred  to  works  on  damages.  The 
discussion  here  is  necessarily  incomplete  and  is  intended 
only  to  cover  the  broad  principles,  and  the  citations, 
while  chosen  to  present  as  wide  a  variation  of  circum- 
stances as  possible,  do  not  touch  every  type  of  case. 

Recovery  of  Money  Paid. — If  the  buyer  has  already 
paid  a  part  of  the  price,  or  all  of  it,  he  may  still,  upon  the 
seller's  failure  to  pass  title,  sue  to  recover  compensation 
for  damage  from  the  breach  of  contract.^  But,  further- 
more, he  may  disregard  damages  as  such,  which  might 
be  more  or  less  than  the  exact  amount  of  the  purchase 
price,  and  sue  specifically  to  recover  the  money  which 
he  paid.^°  If  he  has  received  a  part  of  the  goods,  and 
the  amount  of  the  purchase  price  which  they  represent 
is  not  definitely  fixed  by  the  contract,  he  must  return 
such  part  before  he  is  entitled  to  recover  anj^thing  in 
such  a  suit." 

Inspection  Before  Accepting  Title.  —  Although  the 
buyer  who  has  not  received  title  cannot  compel  the  seller 
to  pass  the  title,  on  the  other  hand,  he  can  not  be  made 
to  take  title  to  goods  which  he  did  not  agree  to  buy. 

If  the  seller  tenders  goods  which  the  buyer  did  not 
contract  for,  the  buyer  is  in  no  way  guilty  of  breach  of 

8— Arnold    v.    Blabon,    147    Pa.  10— Joyce  v.  Adams,  8  N.  Y.  291; 

372,  approved  in  Theiss  v.  Weiss,  Hayes    v.    Stortz,    131    Mich.    63; 

166  Pa.  9.  WiUiams     v.     Allen,     10    Humph. 

9 — In  such  case  the  amount  of  (Tenn.)    337;    Altschul   v.   Koven, 

recovery    w^ould    be    adjusted    to  94  N.  Y.  S.  558;  Dalton  v.  Bentley, 

cover  what  he  had  paid;  if  he  had  15  111.  420,  but  he  can  not  maintain 

paid  the  full  price,  his  recovery  both  actions;    Meader  v.  Cornell, 

would   be  the   full   market  value,  58  N.  J.  L.  375;  Cleveland  v.  Ster- 

Instead  of  the  mere  difference  be-  rett,  70  Pa.  204. 

tween  the  two.     Hill  v.  Smith,  32  11— Miner  v.   Bradley,  22  Pick. 

Vt.  433;  Winside  Bank  v.  Lound,  (Mass.)    457;    Clark  v.   Baker,    5 

52  Neb.  469.  Mete.  (Mass.)  452. 


158  THE  LAW  OF  SALES 

contract  if  he  refuses  to  accept  them,  nor,  of  course,  is 
the  buyer  liable  to  pay  for  them.  ''The  delivery  of  prop- 
erty corresponding  with  the  contract  is  a  condition  prece- 
dent to  the  vesting  of  the  title  in  the  vendee.  The  par- 
ties understand  that  the  vendee  is  not  bound  to  accept 
the  property  tendered,  except  upon  this  condition.  *  *  * 
The  latter  is  not  bound  to  receive  and  pay  for  a  thing 
that  he  has  not  agreed  to  purchase.    *    *    *  "^^ 

When  the  contract  has  been  in  regard  to  a  described, 
but  not  specifically  identified,  chattel,  title,  as  we  have 
seen,  can  not  pass  because  of  the  lack  of  identity  of  the 
chattel.  When  thereafter  the  seller  selects  a  particular 
chattel  as  the  one  to  which  he  intends  to  pass  title  accord- 
ing to  the  contract,  this  of  itself  does  not  thrust  title 
upon  the  buyer.  He,  the  buyer,  still  has  a  right  to  say 
whether  or  not  he  mil  take  the  title.  If  what  the  seller 
offers  is  just  what  the  buyer  agreed  to  take,  it  will  be  a 
breach  of  contract  for  the  buyer  to  refuse  the  title.  But 
if  what  the  seller  offers  is  not  what  the  buyer  agreed 
to  take,  obviously  the  buyer  is  not  at  fault  in  refusing 
title  to  it.* 

Right  to  Inspect. — The  buyer  can  not  be  compelled 


to  accept  or  refuse  title  until  he  has  had  opportunity  to 
see  what  the  seller  offers.  This  is  obvious  justice.  Were 
he  compelled  to  accept  title  to  whatever  unseen  thing 
the  seller  should  offer  he  might  find  himself  saddled 
with  title  to  what  he  did  not  contract  for.  On  the  other 
hand,  were  he  to  play  safe,  by  refusing  the  proffered 
title,  he  might  be  guilty  of  breach  of  contract.  There- 
fore the  law  allows  him  an  opportunity  to  see  what  the 
seller  offers  before  it  mil  hold  him  guilty  of  breach  of 
contract  for  refusing  to  accept  title  to  it.  This  is  often 
called  the  right  of  inspection. f 

12— Reed    v.   Randall,   29   N.  Y.      361;  Chanter  v.  Hopkins,  4  M.  W. 

399. 
•See  Uniform  Sales  Act,  Section  11,  (1),  (2). 
tSee  Uniform  Sales  Act,  Section  47,  (1),  (2). 


THE  BUYER'S  RIGHTS  169 

Thus,  in  Charles  v.  Carter,^^  the  plaintiff,  who  had 
contracted  to  sell  potatoes  to  defendant,  sued  for  dam- 
ages for  breach  of  contract,  because  the  defendant  had 
refused  to  receive  the  potatoes  from  the  carrier  and 
refused  to  pay  for  them.  The  contract  was  for  potatoes 
not  specifically  identified  at  the  time.  On  shipment  the 
plaintiff  took  a  bill  of  lading  in  his  own  name  and,  as 
the  court  held,  thereby  kept  title  in  himself.  The  defend- 
ant was  notified  of  the  arrival  of  the  shipment  and  signi- 
fied his  willingness  to  take  the  title  and  possession,  and 
to  pay  the  price,  if  an  inspection  of  the  potatoes  showed 
them  to  be  such  as  he  had  contracted  for.  The  privilege 
of  inspection  was  refused  by  the  railroad  company  and 
the  defendant  refused  to  receive  the  potatoes.  The 
court  held,  that,  if  these  circumstances  were  found  as 
facts  by  the  jury,  the  defendant  was  not  guilty  of  a 
breach  of  contract,  saying,  as  a  proper  instruction  to 
the  jury,  **If  you  find  that  the  conduct  of  the  plaintiff 
and  his  agents  at  Kansas  City  was  such  that  they  de- 
clined and  refused  to  permit  an  inspection  of  the  pota- 
toes by  the  defendant  within  a  reasonable  time  after 
their  arrival  in  Kansas  City,  and  an  inspection  thereof 
was,  in  consequence,  not  made,  then  it  was  no  longer  the 
duty  of  the  defendant  to  take  such  potatoes".^* 

Expense  of  Inspection. — The  inspection  of  goods 


to  ascertain  if  they  are  in  fact  what  the  contract  of  sale, 
or  its  correlated  contract  of  warranty,  stipulates  they 
shall  be,  is  a  right  of  the  buyer.  But  it  is  solely  for 
his  benefit  as  a  matter  of  protection.  There  is  no  force- 
ful reason  why  the  seller  should  pay  the  expense  incurred 

13 — 96  Tenn.  607.  he  had  an  opportunity  to  inspect  it 

14 — Livesly  v.  Johnson,  45  Ore.  in  order  to  ascertain  whether   it 

30;    Harper   v.    Baird's    Admr.,    3  was  such  as  appellees  stipulated 

Penna.     (Del.)     110;     Deutsch    v.  to    saw."      Osborn    v.    Gantz,    60 

Dunham,   72  Ark.   131,   "The   con-  N.  Y.  540;    Croninger  v.   Crocker, 

tract  being  executory,  it  is  clear  62  N.  Y.  151;   Lorymer  v.  Smith, 

that  appellant  could  not  be  com-  1  Barn.  &  Cress.  1, 
polled  to  accept  the  lumber  until 


160  THE  LAW  OF  SALES 

by  the  buyer  in  thus  protecting  himself.  If  he  tenders 
the  precise  goods  contracted  for,  in  the  manner  agreed 
upon,  he  has  performed  his  contract.  If  the  buyer 
chooses  to  go  to  expense  in  making  sure  of  this  per- 
formance, it  is  the  buyer's  right  to  do  so,  but  it  should 
also  be  at  his  cost.  This  seems  to  be  assumed  as  the 
rule,  since  no  attempts  by  a  buyer  to  recover  such  expense 
are  found  in  the  cases.*^ 

There  are,  however,  some  cases  in  which  inspection 
has  revealed  that  the  seller  did  not  perform  his  contract, 
in  which  the  buyer  has  been  allowed  to  recover  the  cost 
of  the  inspection.  The  theory  of  this  recovery — whether 
on  the  ground  of  damages  from  the  seller 's  breach,  quasi- 
contract,  or  otherwise — is  not  clear.  The  results  are 
obviously  just,  at  least.  If  the  examination  develops  the 
fact  that  the  seller  has  not  performed  his  contract,  but  is 
guilty  of  a  breach,  any  damage  which  the  buyer  suffered 
by  the  breach  is,  logically,  recoverable.  Damage  suf- 
fered through  use  of  an  article  which  does  not  conform  to 
the  terms  of  the  contract,  before  that  non-conformity  is 
discovered,  should  come  mthin  this  rule.  So  also,  even 
if  there  be  no  damage  from  use  of  the  defective  article, 
the  expense  to  which  the  buyer  has  reasonably  put  him- 
self on  the  supposition  that  the  seller  has  properly  per- 
formed should  be  recoverable,  as  a  consequence  of  the 
seller's  breach.^^ 

15 — In  Lincoln  v.  Gallagher,  79  apparently  as  damages  from  the 

Me.  189,  there  is  a  dictum  to  the  seller's  breach  of  the  contract  of 

effect  that  the   seller  must  bear  sale. 

the  expense  of  providing  the  buy-  In     ascertaining     whether     the 

er  with  a  reasonable  opportunity  goods  do  conform  to  the  contract 

to  inspect.  or   not,   it   may   happen   that   the 

16— That  this  is  the  rule,  is  in-  buyer  will  necessarily  have  used 

dicated  in  Ruben  v,  Lewis,  46  N.  or  otherwise  have  destroyed  a  cer- 

Y.    S.    426,    buyer's    expense    for  tain  amount  of  the  goods  tendered, 

transportation    held    recoverable;  If  the  goods  should  turn  out  not  to 

Stafford  v.  Pooler,  67  Barb.  (N.  Y.)  conform  to  the  agreement  and  the 

143,     limited     to     necessary     ex-  buyer     should     therefore     reject 

penses;   Phila.  Whiting  Co.  v.  De-  them,  question  might  arise  as  to 

troit   Lead   Works,    58    Mich.    29.  the  seller's  right  to  compensation 


THE  BUYER'S  RIGHTS  161 

Waiver  of  Right. — The  buyer  may  waive  this  right 

of  inspection  if  he  chooses.  That  is,  he  may  accept  the 
title  without  looking  at  the  goods,  or  he  may  refuse  the 
title  without  claiming  an  opportunity  to  inspect.  In 
the  one  case  he  gets  title  to  the  goods  whether  they  con- 
form to  the  contract  or  not ;  in  the  other,  ho  is  guilty  of 
breach  of  contract  if  thoy  do  conform  to  the  contract. 
But  he  can  not  be  deprived  of  the  opportunity  nor  legally 
refused  it. 

Effect  of  Seller 's  Delivery  to  a  Carrier. — The  mere 

fact  that  the  goods,  as  specified  by  the  seller,  were  ac- 
cepted by  a  carrier  for  delivery  to  the  buyer  does  not 
imply  any  intent  on  the  buyer 's  part  to  accept  them,  nor 
any  legal  (constructive)  acceptance  by  him,  unless  they 
do  conform  to  the  conditions  of  the  contract.  We  have 
seen  that  if  goods  conforming  to  the  terms  of  the  contract 
are  delivered  to  a  carrier  for  the  buyer,  title,  if  not 
already  passed,  is  presumed  to  pass  then.  If  the  theory 
behind  this  passing  of  title  be,  as  w^as  suggested  in  that 
discussion,  that  the  carrier  is  legally  the  agent  of  the 
buyer  to  accept  title,  then  the  carrier  might  also  be  the 
buyer's  agent  to  inspect.  But  whether  this  be  so,  or  not, 
the  carrier  is  not  so  far  the  buyer's  agent  that  receipt 
of  goods  which  are  not  the  ones  contracted  for  will 
vest  title  in  the  buyer.  It  can  not  be  dogmatically  stated 
whether  this  right  of  inspection  does  not  exist  when 
proper  goods  are  delivered  to  a  carrier,  or  whether  it 
does  exist  and  is  exercised  by  the  carrier  as  the  buyer's 

for  those  destroyed.    In  Philadel-  course,  that  he  could  not  recover 

phia  Whiting  Co.  v.  Detroit  Lead  the  contract  price,  as  such.     His 

Works,  58  Mich.  29,  the  court  said  right  to  recover  in  quasi-contract 

specifically  that  in  such  case  the  appears    not   specifically   to   have 

seller    "would    be   liable    for    all  been  decided,  except  in  the  case 

necessary   charges    and    expenses  just  mentioned,  and  the  analogous 

in   testing  the   article",   and   held  propositions  in  quasi-contracts  are 

that  he  could  not  recover  the  value  themselves  so  much  in  dispute  as 

of  the  goods  used  in  making  the  to   leave   that   authority   an   open 

test    which    showed    the    seller's  queston. 
breach  of  contract.    It  is  clear,  of 


162 


THE  LAW  OF  SALES 


agent.  But  at  least  it  seems  reasonably  clear  that  title 
passes  on  delivery  of  proper  goods  to  the  carrier,  with- 
out further  act  on  the  buyer's  part;  and  that  title  does 
not  pass  on  delivery  to  the  carrier  of  goods  which  are  not 
those  contracted  for.  ''To  constitute  a  delivery  to  the 
carrier  a  delivery  to  the  consignee  so  as  to  pass  the  title 
and  make  the  consignee  hable  for  goods  sold  and  deliv- 
ered, the  goods  must  conform  in  quantity  as  well  as  qual- 
ity with  those  named  in  the  order. '  '^'  Hence,  if  the  goods 


17 — Barton  v.  Kane,  17  Wis.  38; 
Diversey  v.  Kellogg,  44  111.  114; 
Pierson  v.  Crooks,  115  N.  Y.  539. 

Occasional  dicta  Imply  that 
some  sort  of  a  "conditional  title" 
does  pass  on  delivery  to  a  carrier, 
which  may  be  "rescinded"  by  the 
buyer.  Kuppenheimer  v.  Wert- 
heimer,  107  Mich.  177;  Magee  v. 
Billingsley,  3  Ala.  679. 

This  proposition  is  not  logi- 
cal. The  whole  theory  of  the  law 
is  that  title  can  not  be  vested  in 
a  buyer  without  his  consent.  His 
agent,  the  carrier,  has  no  author- 
ity to  assent  to  title  in  anything 
but  the  goods  contracted  for.  The 
buyer  himself  cannot  logically  be 
said  to  have  assented  to  taking 
title  in  goods  not  contracted  for 
until  he  has  had  a  chance  to  learn 
that  other  goods  than  those  con- 
tracted for  have  been  offered  to 
him.  If  the  proper  goods  have 
been  offered,  the  buyer's  inspec- 
tion does  no  more  than  verify  the 
validity  of  the  carrier's  assent. 
But  if  other  goods  have  been 
delivered  the  buyer's  inspec- 
tion is  the  first  opportunity 
for  his  assent  to  be  given  at  all; 
until  such  inspection  there  is  no 
assent,  and  without  assent  there 
can  not  logically  be  title  in  the 
buyer. 

The    inaccuracy    of    the    state- 


ments referred  to  is  further  indi- 
cated by  the  case  of  Gardner  v. 
Lane,  12  Allen  (Mass.)  39.  One 
Wonson  had  contracted  to  sell  to 
the  plaintiff  131  bbls.  of  jjl  mack- 
erel. On  pretended  performance 
of  this  contract  he  delivered  to 
plaintiff  a  number  of  barrels, 
which  in  fact  contained  83  mack- 
erel and  some  which  contained  no 
mackerel  at  all  but  only  salt.  At 
a  proper  time  the  plaintiff  exam- 
ined the  barrels  and  elected  to 
take  title  to  the  goods  despite  non- 
conformity with  the  contract.  Be- 
fore this  inspection,  however, 
though  after  the  delivery  to  the 
plaintiff,  the  defendant,  as  a  credi- 
tor of  Wonson,  had  levied  on  the 
goods  as  Wonson's  property.  The 
court  held  that  it  was  Wonson's 
property  at  the  time  of  the  levy, 
despite  the  plaintiff's  possession 
of  it  and  his  subsequent  willing- 
ness to  keep  it,  because  at  that 
time  the  plaintiff  had  never  con- 
sented to  the  vesting  of  title  in 
him.  Accord,  Alamo  Cattle  Co.  v. 
Hall,  220  Fed.  832;  Dube  v.  Lib- 
erty Clothing  Co.,  153  N.  Y.  S.  577, 
91  Misc.  64. 

Of  course,  if  the  goods  delivered 
to  the  carrier  do  conform  to  the 
terms  of  the  contract,  title  passes 
at  that  time,  not  because  the  sell- 
er can   thrust  even  a  temporary 


THE  BUYER'S  RIGHTS  163 

selected  by  the  seller  and  consigned  to  the  buyer  are  found 
on  inspection  not  to  conform  to  the  terms  of  the  contract, 
the  buyer  may  refuse  to  accept  them,  or  to  pay  for  them, 
on  the  ground  that  he  did  not  buy  them." 

Waiver  Through  Delay. — Even  if  the  buyer  him- 
self receives  possession  of  them,  he  is  not  presumed  to 
have  waived  their  non-conformity  with  the  contract  and 
to  have  taken  title  anyhow,  until  he  has  had  a  reasonable 
time  and  opportunity  to  find  out  that  they  do  not  con- 
form to  its  terms. 

''And  what  is  a  reasonable  time  is  usually  a  question 
of  fact,  and  not  of  law,  to  be  determined  by  the  jury 
upon  all  the  circumstances,  including  as  well  the  situ- 
ation and  liability  of  injury  to  the  vendor  from  delay 
as  the  convenience  and  necessities  of  the  vendee."^®  In 
the  particular  case  from  which  the  quotation  is  taken, 
the  delay  in  examining  the  quality  of  iron  in  certain 
hoops  was  ten  days  after  the  carrier  had  unloaded  them, 
and  the  court  said,  this  *Svas  not  so  great  that  the  court 
can  say,  as  a  matter  of  law,  that  it  was  unreasonable, 
and  we  are  concluded  by  the  finding  of  the  referee  from 
re-examining  the  question  of  fact."  In  Philadelphia 
Whiting  Co.  v.  Detroit  Lead  Works^°  the  sale  was  whiting, 
to  be  of  the  best  quality  for  use  in  making  putty.    The 

title  on  an  unwilling  buyer,  but  That  this  last  proposition  is  cor- 

because    the    carrier,    as    buyer's  rect,    see,    Skinner   v.    Griffith    & 

agent,  accepts   the   title.     If  one  Sons,  80  Wash.  291,  141  Pac.  693. 

accepts  the  theory  of  the  carrier's  18 — Livesly  v.  Johnston,  45  Ore. 

agency   to   accept   title   to   goods  30;    Diversey   v.    Kellogg,    44   III. 

which  conform  to  the  contract —  114;   Pierson  v.  Crooks,  115  N.  Y. 

and  this  is  the  only  theory  which  539;   Scranton  v.  Mechanics  Trad- 

the    decisions    will    harmoniously  ing  Co.,  37  Conn.  130;  Croninger  v. 

support — there    is   nothing   incon-  Crocker,   62  N.  Y.   151,  tender  of 

sistent    in    the    proposition    that  goods  to  which  the  seller's  title 

title  to  goods  not  conforming  to  was    defective;     Columbian    Iron 

the  contract  does  not  pass  at  all  Works    v.    Douglass,    84    Md.    44; 

until   the   buyer's   inspection   and  Fogel  v.  Brubaker,  122  Pa.  7. 

acceptance,  but  that  title  to  goods  19 — Pierson  v.  Crooks,  115  N.  Y. 

which  do  conform  to  the  contract  539. 

passes  on  delivery  to  the  carrier.  20 — 58  Mich.  29. 


164  THE  LAW  OF  SALES 

buyer  received  the  shipment  and  used  42  barrels, 
out  of  the  300  bought,  at  the  rate  of  3  or  4  per  day. 
After  such  use  the  buyer  began  to  receive  complaints 
as  to  the  quality  of  its  putty  and  thereupon  notified  the 
seller  that  it  would  hold  the  remaining  barrels  as  the 
seller's  property.  The  court  held  that  it  had  been  prop- 
erly left  to  the  jury  to  say  whether  or  not  the  duration 
and  character  of  the  examination  were  reasonably 
necessary  to  determine  the  quality  of  the  whiting,  and 
that  if  the  jury  found  that  such  examination  was  reason- 
able, the  buyer  had  not  lost  its  right  to  refuse  title  to 
the  rest  of  the  goods.^^* 

If  the  court,  or  jury,  decides  that  the  buyer  has  kept 
the  goods  tendered  for  an  unreasonable  time,  without 
inspecting  them  or  objecting  to  them,  then  it  is  assumed 
that  he  has  chosen  to  keep  them  despite  the  difference 
between  what  they  are  and  what  they  should  have  been. 
''The  delivery  of  property  corresponding  Avith  the  con- 
tract is  a  condition  precedent  to  the  vesting  of  the  title 
in  the  vendee.  The  parties  understand  that  the  vendee 
is  not  bound  to  accept  the  property  tendered,  except  upon 
this  condition.  *  *  *  The  latter  is  not  bound  to  receive 
and  pay  for  a  thing  that  he  has  not  agreed  to  purchase ; 
but  if  the  thing  purchased  is  found  on  examination  to  be 
unsound,  or  not  to  answer  the  order  given  for  it,  he  must 
immediately  return  it  to  the  vendor,  or  give  him  notice 
to  take  it  back,  and  thereby  rescind  the  contract,  or  he 
Avill  be  presumed  to  have  acquiesced  in  its  quality.  "^^ 

21 — Reuben  v.  Lewis,  46  N.  Y.  if  the  retention  of  possession  is 

S.    426;    Saunders   v.  Jameson,   2  perfectly  consistent  with  the  idea 

C.  &  K.  557;  Gordon  v.  Waterous,  of  the  buyer's  rejection  and  of  title 

36  Up.  Can.  Q.  B.  321,  delay  justi-  still  resting  in  the  seller.     Thus, 

fled   by   fact   that,    seller   having  in  Blackwood  v.  Cutting  Packing 

failed  to  deliver  as  expected,  buy-  Co.,  76  Cal.  212,  the  buyer's  acts 

er  had  secured   other  goods  and  did  not  preclude  him  from  denying 

had    no    reason    to    open    seller's  title,  because   they  had   been   ac- 

packages  at  once.  companied  with  a  notice  that  he 

22 — Reod   v.   Randall,   29   N.   Y.  was  acting  in  the  seller's  interest 

361.     This  result  does  not  follow  only.      Cf.    Zabriskie    v.    Central 

*See  Uniform  Sales  Act,  Section  48. 


THE  BUYER'S  RIGHTS  165 

A  pointed  illustration  is  the  case  of  Cream  City  Gas 
Co.  V.  Friedlander.2^  The  plaintiff  sued  to  recover 
money  it  had  paid  defendant  for  certain  soda  ash.  The 
ash  when  delivered  was  inspected  by  the  plaintiff  and 
found  not  to  conform  to  the  implied  terms  of  the  contract 
and  the  plaintiff  notified  the  seller  that  it  would  not 
accept.  Thereafter,  however,  the  plaintiff  ''made  a  prac- 
tical test  of  the  material  by  trying  to  make  glass  there- 
from, ' '  and  demonstrated  that  it  did  not  accord  with  the 
contract  terms.  This  action,  the  court  held,  amounted 
to  an  acceptance  of  the  ash  and  precluded  the  plaintiff 
from  rejecting  it.  ''It  seems  clear,"  said  the  court, 
"that  the  plaintiff  was  entitled  to  a  reasonable  time 
after  actual  receipt  of  the  material  to  exercise  the  right 
of  rejection  in  case  the  goods  did  not  conform  to  the 
contract.  If  this  fact  could  only  be  ascertained  by  a 
practical  test,  the  plaintiff  also  had  the  right,  mthin 
such  reasonable  time,  to  make  such  practical  test,  using 
only  so  much  of  the  material  as  was  reasonably  necessary 
for  the   purpose,  mthout  thereby  losing  the   right   of 

Vermont  R.  R.,  131  N.  Y.  72;  Gold  some  of  them  held  an  acceptance. 
Ridge  Mining  Co.  v.  Tallmadge,  Pullman  Car  Co.  v.  Metropolitan 
44  Ore.  34.  Rr.  Co.,  157  U.  S.  92;  Coplay  Iron 
As  to  the  presumption  of  accept-  Co.  v.  Pope,  108  N.  Y.  232;  Fisher 
ance  of  the  goods  as  tendered,  see  v.  Samuda,  1  Camp.  190;  Doan  v. 
also,  Barton  v.  Kane,  17  Wis.  38,  Dunham,  79  111.  131;  Titley  v. 
"When  goods  prove  defective  in  Enterprise  Co.,  127  111.  457; 
quality,  it  is,  in  general,  incumbent  Thompson  v.  Libbey,  35  Minn.  443. 
on  the  purchaser  to  notify  the  In  Diversey  v.  Kellogg,  44  111. 
seller  of  his  non-acceptance  on  114,  it  is  suggested  that  the  reten- 
that  ground,  else  he  is  deemed  tion  of  the  goods  would  make  the 
to  waive  the  objection,  and  to  con-  buyer  liable  for  their  value,  as  dis- 
sent to  keep  and  pay  for  them  ac-  tinct  from  their  contract  price, 
cording  to  the  terms  specified.  In  9o  also.  Basin  &  Co.  v.  Conley,  58 
such  case,  it  is  considered  suflBl-  Md.  59. 

cient  evidence  of  acceptance  that  Unreasonable      retention,     and 

the  purchaser  has  not  returned  or  use,  of  a  part  of  the  goods  tend- 

offered    to    return    the    goods,    or  ered  was  held  to  constitute  an  ac- 

notified   the  seller  of  his  non-ac-  ceptance    of    the    whole    of    the 

ceptance."  Freedman  v.  Shoe  Mfg.  goods,  in  Emmery  Thompson  Co.  v. 

Co.,  122  Pa.  25,  keeping  shoes  in  Graves,  91  Conn.  71,  98  Atl.  331. 

stock  for  two  months  and  selling  23 — 84  Wis.  53. 


166  THE  LAW  OF  SALES 

rejection.  But  this  test  is  plainly  for  the  purpose  only 
of  enabling  the  purchaser  to  decide  whether  the  material 
conforms  to  the  contract.  If  the  fact  can  be  determined 
by  inspection  alone,  the  test  is  not  necessary,  and  the 
use  of  the  material,  therefore,  clearly  injustifiable.  Now 
in  this  case,  the  plaintiff's  officers  determined  at  once, 
and  upon  inspection  alone,  that  the  material  was  unfit 
for  their  purposes,  and  so  notified  the  defendant,  and 
rejected  the  entire  lot.  They  did  not  claim  to  need  any 
test,  they  took  their  position  definitely.  After  that  act 
they  could  not  deal  with  the  property  in  any  way  incon- 
sistent with  the  rejection,  if  they  proposed  to  insist  upon 
their  right  to  reject.  They  must  do  no  act  which  they 
would  have  no  right  to  do  unless  they  were  owners  of 
the  goods.  Under  these  rules  it  is  evident  the  plaintiff 
had  no  right  to  use  up  a  quantity  of  the  material  several 
weeks  after  the  rejection.  By  the  rejection  it  became 
defendant's  property  if  such  rejection  was  rightful. 
Plaintiff  had  no  right  to  use  any  part  of  it.  It  is*  claimed 
that  the  use  was  simply  for  the  purpose  of  providing 
evidence  of  unfitness  for  the  purpose  of  the  trial  of  this 
case;  but  one  has  no  right  to  use  his  opponent's  prop- 
erty for  the  purpose  of  making  evidence.  The  act  was 
an  unmistakable  act  of  ownership,  and  entirely  incon- 
sistent with  the  claim  that  the  material  had  been  re- 
jected and  was  owned  by  defendant. ' ' 

Inspection  Before  Payment. — There  is  a  right  of  in- 
spection whose  purpose  is  entirely  different  from  the 
one  just  discussed,  but  which  is  often  confused  with  it. 
This  is  the  right  to  inspect  as  a  condition  precedent  to 
payment.  The  right  of  inspection  just  discussed  exists 
in  order  that  the  buyer  may  know  whether  the  goods 
offered  are  those  he  contracted  for,  before  he  takes  or 
refuses  the  title  to  them.  It  presupposes  that  the  con- 
tract has  been  in  respect  to  unidentified,  though  described, 
goods  so  that  title  did  not  pass  at  the  time  of  making  the 


THE  BUYER'S  RIGHTS  167 

contract,  or  that,  for  some  other  reason,  title  has  not 
already  passed  to  the  buyer. 

But  when  the  parties  have  contracted  concerning  a 
specifically  identified  chattel,  the  rule  is  that  title  pre- 
sumably passes  at  the  time  the  contract  is  made,  regard- 
less of  payment  or  change  of  possession.  When,  there- 
fore, the  possession  of  such  a  chattel  is  offered  to  the 
buyer  and  payment  demanded,  the  buyer's  inspection  or 
non-inspection  can  not  affect  the  title — title  is  already  in 
the  buyer. 

If  he  has  contracted  to  pay  at  a  certain  date,  prior  to 
delivery  of  the  goods  to  him,  he  would  break  the  contract 
by  refusing  to  pay.  But  if  delivery  of  the  chattel  is  to 
precede,  or  to  be  concurrent  with,  payment,  he  need  not 
pay  until  the  very  chattel  he  bought  is  delivered  or  of- 
fered to  him.  Furthermore,  he  need  not  take  the  seller's 
word  that  the  chattel  offered  is  the  one  contracted  for; 
he  has  the  right  to  see  for  himself.  If  this  opportunity 
to  see.  for  himself  is  not  given,  he  is  not  in  breach  of 
the  contract  if  he  refuses  to  pay.*  The  title  is  none  the 
less  in  him,  but  he  does  not  have  to  pay  until  he  receives 
possession,  and  he  does  not  have  to  take  possession  with- 
out knowing  that  he  is  getting  the  chattel  he  contracted 
for. 

This  right  to  inspect  before  payment  may,  like  the  right 
to  inspect  before  taking  title,  be  waived,  and  such  waiver 
may  be  implied  from  the  terms  of  the  contract  and  the 
acts  of  the  parties.  An  agreement,  for  instance,  that  the 
goods  are  to  be  sent  to  the  buyer  ''C.  0.  D."  may 
preclude  his  right  to  any  inspection  before  payment. 
Such  may  be  the  effect  of  a  failure  to  examine  the  goods 
at  a  reasonable  time,  or  contracting  for  their  delivery  in 
such  a  way  that  inspection  before  coincident  pa^nnent  is 
impracticable.^*^ 

24 — Sawyer  v.  Dean,  114  N.  Y.      S.  793,  agreement  to  pay  on  pre- 
469;  Whitney  v.  McLean,  38  N.  Y.      sentation  of  bill  of  lading;    Law- 
*See  Uniform  Sales  Act,  Section  47,  (1),  (2). 
tSee  Uniform  Sales  Act,  Section  47,  (3). 


168  THE  LAW  OF  SALES 

This  waiver  of  inspection  before  payment,  however, 
does  not  necessarily  affect  title  to  the  goods.  If  title  has 
already  passed,  at  the  time  of  the  contract,  or  by  seller's 
dehvery  to  a  carrier  of  goods  conforming  to  the  contract, 
inspection  or  failure  to  inspect  does  not  affect  it ;  it  is  in 
the  buyer  and  remains  in  him.  On  the  other  hand,  if  the 
goods  received  by  the  buyer  are  not  in  fact  the  goods 
he  contracted  for,  neither  his  mere  physical  acceptance 
of  them,  as  we  have  seen,  nor  his  payment  for  them,  neces- 
sarily implies  a  willingness  to  take  title  despite  the  sell- 
er's failure  to  perform. 

Performance  of  Conditions  by  Seller. — Both  of  these 
rights  of  inspection  are  for  the  purpose  of  giving  the 
buyer  opportunity  to  learn  whether  the  thing  offered  by 
the  seller  is  in  fact  what  the  buyer  contracted  to  take. 
This,  then,  involves  a  question  in  each  case  of  just  what 
it  was  that  the  seller  agreed  to  transfer  and  the  buyer  to 
accept. 

What  Conditions  Are. — ^Whether  or  not  the  seller 

has  tendered  the  goods  contracted  for  by  the  buyer  de- 
pends obviously  on  the  terms  of  the  contract;  that  is  to 
say,  upon  those  terms  of  the  contract  which  relate  to  the 
identity  of  the  goods  intended  to  be  covered  by  it.  These 
terms  of  identifying  description,  to  which  goods  tendered 
must  conform  to  be  the  goods  contracted  for,  are  usually 
called  '' conditions. '"^^ 

ton  &  Sons  Co.  v.  Mackie  Grocery  which  the  buyer  may  refuse  them. 
Co.,  97  Md.  1,  agreement  to  pay  Scranton  v.  Mechanics  Trading 
on  delivery  to  a  named  place;  Co.,  37  Conn.  130;  Norrington  v, 
Polenghi  Bros.  v.  Dried  Milk  Co.,  Wright,  115  U.  S.  188. 
49  Sol.  Jr.  120.  But,  as  some  courts  allow  re- 
25 — Although  the  term  "war-  jection  of  title  of  goods  which  are 
ranty"  is  usually  applied  to  those  indubitably  those  contracted  for, 
terms  of  description  which  do  not  but  which  do  not  conform  to  the 
affect  the  precise  identity  of  the  terms  of  the  contract  in  other  re- 
goods  contracted  for,  it  is  some-  spects  than  identity,  (see  p.  182) 
times  used  of  those  parts  of  de-  the  use  of  the  word  "warranty" 
Bcription    for    non-conformity    to  itself  indicates  nothing. 


THE  BUYER'S  RIGHTS  169 

Furthermore,  it  may  be  possible  that  the  seller  tenders 
to  the  buyer  precisely  the  goods  contracted  for,  in  in- 
herent nature,  but  does  not  tender  them  at  the  place 
agreed  upon,  or  at  the  right  time,  or  in  the  right  way, 
etc.  In  such  case,  if  the  matter  failed  in  is  of  essential 
importance  in  the  agreement,  the  seller  has  not  performed 
his  agreement.  And  not  having  himself  performed,  he 
cannot  sue  the  buyer  if  the  latter  refuses  to  pay.  It 
might  be  said  that,  in  these  cases  the  very  goods  described 
in  the  contract  having  been  tendered,  title  would  be  pre- 
sumed to  have  passed,  although  the  buyer  incurs  no  "lia- 
biUty"  as  to  payment  until  the  seller  shall  have  per- 
formed according  to  the  terms.  But,  on  the  other  hand, 
the  goods  not  having  been  specific  at  the  time  of  the  mak- 
ing of  the  contract,  title  could  not  have  passed  then  and 
would  not  pass  thereafter  without  some  actual  or  con- 
structive assent  of  the  buyer.  The  buyer  not  having 
accepted  the  goods,  the  title  would  not  be  in  him,  what- 
ever might  have  been  his  reason  for  refusing  to  take  it. 
The  question  of  title  is  not  specifically  raised  in  the  cases 
involving  these  circumstances,  but  the  courts  do  agree 
that,  at  least,  there  is  no  liahility  on  the  part  of  the  buyer. 

These  provisions  of  the  contract,  also,  since  they  must 
be  complied  with  to  make  the  buyer  liable,  are  called  ' '  con- 
ditions." And,  indeed,  in  some  cases  such  terms  as  the 
time  and  place  of  delivery — which  seem  normally  related 
to  performance  rather  than  to  identity — are  said  to  be 
essential  to  the  identity  of  the  goods.  Thus  one  court  says, 
''The  date  of  the  shipment  is  a  material  element  in  the 
identification  of  the  property. '  '^®  Other  courts  treat  them 
as  having  the  same  effect,  without  specifically  saying  that 
they  do  affect  the  identity.  For  example,  the  Supreme 
Court  says,^''  ''A  statement  descriptive  of  the  subject 
matter,  or  of  some  material  incident,  such  as  the  time  or 
place  of  shipment,  is  ordinarily  to  be  regarded  as  a  war- 

26— Clark  v.  Fey,  121  N.  Y.  470.         27— Norrington   v.    Wright,    115 

U.  S.  188. 


170  THE  LAW  OF  SALES 

ranty,  in  the  sense  in  which  that  term  is  used  in  insurance 
and  maritime  law,  that  is  to  say,  a  condition  precedent, 
upon  the  failure  or  non-performance  of  which  the  party 
aggrieved  may  repudiate  the  w^hole  contract. '  '^^  It  seems 
unavoidable,  therefore,  to  discuss  both  kinds  of  these  con- 
ditions, viz.,  those  relating  to  performance  as  well  as 
those  affecting  identity,  on  whose  performance  by  the 
seller  the  buyer's  liability  depends,  without  particular 
distinction. 

What  Are  Conditions. — This  brings  us  to  the  in- 


quiry, what  terms  in  the  contract  are  "conditions"  to 
which  the  seller  must  conform  to  render  the  buyer  liable. 
When  the  contract  is  for  the  sale  of  an  article  specifically 
identified  at  the  time,  a  tender  by  the  seller  of  that  par- 
ticular article  would  seem  clearly  to  be  a  performance  of 
his  agreement,  so  far  as  his  part  in  the  transfer  of  title  is 
concerned,  no  matter  what  statements  he  may  have  made 
in  regard  to  the  character  or  qualities  of  that  article. 
This  is  fully  sustained  by  the  authorities  which  hold 
that  title  to  a  specific  chattel  is  presumed  to  have  passed 
at  the  time  of  the  contract,^^  in  conjunction  mth  those 

28— "The  quality  Is  a  part  of  the  N.   Y.   366;    Rommel  v.   Wingate, 

description  of  the  thing  agreed  to  103   Mass.  327;    Cromwell  v.  Wil- 

be  sold,  and  the  vendor  is  bound  kinson,  18  Ind.  365;  Filley  v.  Pope, 

to   furnish  articles  corresponding  115   U.    S.    213,   "The   term    'ship- 

with  the  description.  If  he  tenders  ment    from    Glasgow'    defines    an 

articles  of  an  inferior  quality,  the  act    to    be    done    by    the    sellers 

purchaser  is  not  bound  to  accept  at     the     outset,     and     a     condi- 

them."      Pierson    v.    Crooks,    115  tion    precedent    to    any    liability 

N.  Y.  539;    "What  is  sold  is  not  of     the     buyer."       Van     Valken- 

300   tons  of  rice   in   gross,   or  in  berg  v.  Mason,  45  Neb.  654.      Quan- 

general.     It  is  300  tons  of  Madras  tity  also  may  be  a  condition  pre- 

rlce  to  be  put  on  board  at  Madras  cedent,   Tamvaco  v.   Lucas,   1  El. 

during    the     particular    months",  &  El.  592;   Downer  v.  Thompson, 

Bowes  V.  Shand,  2  App.  Cas.  455;  2  Hill  (N.  Y.)  137,  delivery  of  too 

Salmon  v.  Boykin  Co.,  66  Md.  541,  much;     Cunliffe     v.     ITarrison,     6 

quantity  and   place   of  shipment;  Exch.     903,     idem;     Hoffman     v. 

Crane  v.   Wilson,   105   Mich.   554;  King,  58  Wis.  314.     Cf.  Brownfield 

Cleveland  Rolling  Mill  v.  Rhodes,  v.  .lohnson.  128  Pa.  254. 
121  U.  S.  255;  Pope  v.  Porter,  102  2^— Ante,  p.  19  ff. 


THE  BUYER'S  RIGHTS  171 

which  hold  that  a  specific  chattel  so  sold  can  not  be  re- 
turned to  the  seller  in  the  absence  of  fraud.^° 

The  converse  of  this  is  equally  true ;  a  contract  to  sell 
a  specific  chattel  is  not  satisfied  by  a  tender  of  some  other 
chattel,  even  though  the  one  tendered  has  all  the  qualities 
ascribed  to  the  one  contracted  for.  Thus,  in  Columbia 
Iron  Works  v.  Douglass,^^  the  contract  was  for  the  sale 
of  steel  scrap  from  the  plates  of  certain  boats  which  the 
seller  was  building.  The  court  held  that  a  tender  of  steel 
scrap  which  was  not  from  the  plates  of  those  boats 
was  not  performance  of  the  contract,  even  though  that 
which  was  tendered  was  of  precisely  equal  quality.  ''It 
was/'  said  the  court,  "an  agreement  for  the  purchase 
by  the  appellee  and  for  the  sale  by  the  appellant  of  a  spe- 
cific, designated  thing;  and  that  thing  was  not  steel  of  a 
described  grade  free  from  a  named  percentage  of  sulphur 
and  phosphorous,  but  steel  scrap  from  the  plates,  beams, 
and  angles  of  the  United  States  cruisers  built  by  the  ap- 
pellant. This  was  the  named  and  designated — the  specific 
and  identical — thing  contracted  for ;  and  the  substitution 
of  any  other  or  different  material,  no  matter  what  its 
quality  or  chemical  test  might  be,  was  a  clear  breach  of 
the  undertaking  entered  into  by  the  parties.  When  a  per- 
son buys  a  particular  thing,  he  can  not  be  compelled  to 
take  some  other  thing,  even  if  like  the  thing  he  bought. 
He  has  a  right  to  insist  on  the  terms  of  his  contract." 

When  the  contract  relates  to  goods  not  existing,  or  not 
specific,  at  the  time,  then  all  terms  in  the  description 
which  are  reasonably  necessary  to  identify  the  goods 
tendered  with  the  goods  intended  by  the  contract  are  con- 
ditions and  must  be  comphed  with.  In  general,  all  terms 
which  the  parties  may  reasonably  be  supposed  to  have 
considered  essential  to  the  correct  identification  are  a 
part  of  the  description  which  must  be  complied  with.  If, 
for  instance,  one  agree  to  sell  "blue  vitriol,  sound,  and 

ZO—Post,  p.  177.  Cf.  also,  Web-  Iowa  37;  Scott  v.  Buck,  85  III.  333. 
ster,    Gruber    Co.    v.    Dryden,    90  31—84  Md.  44. 


172  THE  LAW  OF  SALES 

in  good  order,"  his  contract  is  not  performed  by  a  de- 
livery of  vitriol,  however  sound  and  in  good  order,  which 
is  not  blue  vitriol.  ' ' Saltzberger, "  or  "green,"  vitriol 
does  not  suffice. ^^  It  is  impossible  to  formulate  a  rule  as 
to  just  which  terms  of  a  contract  are  essential  to  the  iden- 
tification of  the  goods  intended  and  which  are  mere  de- 
scription of  character  or  quality  collateral  to  the  identifi- 
cation.^^ Whether  a  particular  term  is  in  fact  an  essential 
part  of  the  contract  of  sale,  or  is  only  an  obligation  col- 
lateral to  the  matter  of  passing  title,  is  a  matter  that  will 
be  decided  by  each  court  to  suit  itself  in  the  particular 
case.  For  precedent  decisions,  which  may  by  the  similar- 
ity of  their  facts  influence  a  particular  judge,  one  must 
refer  to  the  digests. 

Opinions  as  Conditions. — A  statement  of  opinion 


as  to  the  characteristics  or  qualities  of  the  goods  con- 
tracted for,  is  not  a  part  of  the  identifying  description, 
even  though,  in  expression,  it  may  be  interwoven  with  the 
description.  It  is  not  a  condition  precedent  to  per- 
formance, therefore,  that  the  goods  shall  actually  conform 
to  that  statement  of  opinion. 

The  great  difficulty  is  to  distinguish  precisely  between 
description  for  the  purpose  of  identification  and  mere 
coincident  expressions  of  opinion.  There  are  no  rules  for 
determining  this — it  is  a  question  of  particular  conclu- 
sion. But  if  this  question  be  settled  in  the  particular 
case,  the  law  is  certain;  description  must  be  complied 
with,  opinion  is  immaterial.^* 

32— Hawkins  v.   Pemberton,  51  drover  to  an  experienced  market 

N.  Y.  98.  man  that  his  hogs  were  "suitable 

33 — As   to   the    effect   of  state-  for  New  York  market"  was  a  mere 

ments,  by  way  of  description  or  expression  of  opinion;   Farrow  v. 

otherwise,     in     regard     to     goods  Andrews,    69    Ala.    96;    Power    v. 

which   are   specific   and   identified  Barham,  4  Ad.  &  EI.  473,  "It  was, 

at  the  time  of  sale,  see  the  discus-  therefore,    for    the    jury    to    say, 

sion  under  "warranty,"  post,  p.  182.  under  all  circumstances,  what  was 

34— Bartlett  v.   Iloppock,  34   N.  the  effect  of  the  words,  and  wheth- 

Y.    118,    a    statement    by    a    hog-  er  they  implied  a  warranty  of  gen- 


THE  BUYER'S  RIGHTS  173 

Implied  Conditions. — An  important  proposition  in 

respect  to  these  conditions,  or  terms  of  the  description,  is 
that  they  need  not  be  wholly  express.  Terms  which  must 
be  complied  mth  to  constitute  performance  may  be  im- 
plied by  the  other  provisions  of  the  contract.* 

ThuS;  ''It  is  understood  of  every  contract  for  the  future 
sale  and  delivery  of  an  article  of  merchandise,  (not 
specific  at  the  time),  even  A\dthout  express  terms,  that  it 
shall  be  of  merchantable  quality."  And  this  is  a  con- 
dition precedent.^^  Howard  v.  Hoej^,^^  arose  out  of  a  sale 
of  ale.  On  delivery  it  was  discovered  to  be  sour,  ropy 
and  unfit  for  use  and  the  buyer  refused  to  keep  it.  The 
seller  contended  that  there  was  no  express  statement  in 
the  contract  that  it  should  not  be  sour.  But  the  court 
held  an  express  statement  to  be  unnecessary,  saying, 
''It  stands  conceded,  that,  where  the  contract  is  execu- 
tory,, or,  in  other  words,  to  deliver  an  article  not  defined 
at  the  time,  *  *  *  the  promisee  can  not  be  compelled 
to  put  up  satisfied  with  an  inferior  commodity.  The  con- 
tract always  carries  an  obligation  that  it  shall  be  at  least 
merchantable — at  least  of  medium  quality  and  goodness. 
If  it  come  short  of  this  it  may  be  returned  after  the 
vendee  has  had  a  reasonable  time  to  inspect  it.  *  *  * 
There  is  always  a  warranty  or  promise  implied  that  the 
indeterminate  thing  to  be  delivered  should,  at  least,  not 
have  any  remarkable  defect.""  The  implication  is  not 
that  the  goods  othermse  described  shall  be  of  the  best 
quality,  but  only  that  they  shall  be  of  a  normally  good 

ulneness,  or  conveyed  only  a  de-  This  is  a  question  for  the  jury, 

scription,     or     an    expression     of  Hawkins  v.  Pemberton,   51  N.   Y. 

opinion."     Jendwyn    v.    Slade,    2  198,    10   Am.    Rep.    595;    Allen    v. 

Esp.  572.  Lake,  18  Q.  B.  560. 

The  frequency  with  which  state-  35— Reed   v.   Randall,   29   N.   Y. 

ments  by  the  seller  in  regard  to  361. 

the  goods  are  held  to  be  only  ex-  36—23  Wend.  (N.  Y.)  350. 

pressions  of  opinion  is  vigorously  37 — Farren  v.  Dameron,  99  Md. 

condemned  by  the  Supreme  Court  323. 
of  Kansas,  in  Foote  v.  Wilson,  104 
Kan.  191,  178  Pac.  430. 

*See  Uniform  Sales  Act.  Sections  12,  13,  14,  15. 


174  THE  LAW  OF  SALES 

quality.^*  Usually,  in  cases  where  goods  are  to  be 
shipped,  the  implied  statement  is  as  to  their  quality  and 
condition  at  time  of  shipment  only.  This  is  usually  the 
time  of  constructive  dehvery  to  the  buyer.^^ 

Other  terms  that  may  be  implied  from  the  circum- 
stances are  discussed  under  the  topic  of  ''Warranties".**' 

Waiver  of  Performance  of  Conditions. — Assuming 


that  some  particular  term  in  the  contract  is  identifying 
description  of  the  goods,  and  therefore  a  condition  prece- 
dent to  the  seller's  exact  performance,  the  question  may 
arise — what  is  the  result  if  the  buyer  chooses  to  accept 
title  despite  the  defect? 

Does  he,  by  accepting  the  goods  tendered  in  place  of 
the  ones  contracted  for,  waive  all  right  to  recover  dam- 
ages suffered  through  the  seller's  failure  to  tender  the 
goods  described?  In  other  words,  does  he,  by  accepting 
the  goods  actually  tendered,  legally  accept  them  in  full 
satisfaction  of  the  seller's  obligation?  Authority  is 
very  much  confused  upon  this  point.  The  New 
York  courts  rather  indicate  that  if  the  term  with 
which  compliance  has  been  waived  is  truly  a  condition, 
the  waiver  extends  not  only  to  the  passing  of  title  but 
to  all  claims  for  damage  as  well,  if  the  acceptance  is  made 
with  knoivledge  that  the  condition  is  not  complied  with. 
Occasional  decisions  in  other  jurisdictions  intimate  a 
similar  rule.*^ 

There  is  tendency  of  the  courts,  however,  to  hold,  in 

38— Sweat     v.     Shumway,     102  well  v.  Lee,  34  Minn.  411;  Cheboy- 

Mass.  365;  Harris  v.  Waite,  51  Vt.  gan    Paper    Co.    v.    Eichberg,    184 

481;    Tennessee  Co.  v.  Leeds,   97  Mich.  30;  America  Theater  Co.  v. 

Tenn.  574.  Siegel,  Cooper  &  Co.,  221  111.  145; 

39— Leopold    v.    Van    Kirk,    27  but  of..  Underwood  v.  Wolf,  131  III. 

Wis.    152;    Mann  v.   Everston,   32  425;  Athletic  Club  v.  Lumber  Co., 

Ind.  355.  18    Tex.    Civ.    Ap.    161;     Hurley- 

40— Posf,  p.  189.  Mason  Co.  v.  Stebbings,  79  Wash. 

41— Reed   v.   Randall,   29   N.   Y.  366,  140  Pac.  381.    But  cf.,  Spring- 

358;  Coplay  Iron  Co.  v.  Pope,  108  field  Shingle  Co.  v.  Edgecome  Mill 

N    Y.   232;    Carleton   v.   Lombard.  Co.,  52  Wash.  620. 
Ayres  &  Co.,  149  N.  Y.  137;   Max- 


THE  BUYER'S  RIGHTS  175 

one  way  or  another,  that  the  buyer  does  not  lose  his 
right  to  damage  for  non-performance  by  accepting  title 
to  the  goods  as  tendered.*^* 

The  matter  is,  however,  rather  hopelessly  confused 
by  terminology.  Those  terms  of  the  description  which 
serve  to  identify  goods  contracted  for  must  be  complied 
with  before  the  contract  of  sale  can  be  properly  per- 
formed; they  are  truly  conditions  precedent.  Those 
terms  which  may  describe,  but  do  not  identify,  the  goods 
are  not  conditions,  and  are  usually  called  "warranties." 
They  do  not  relate  to  the  passing  of  title.  As  a  war- 
ranty, in  this  narrow  sense,  does  not  relate  to  title,  the 
goods  could  not  be  rejected  by  the  buyer  for  breach  of  it — 
they  would  still  be  the  identical  goods  he  agreed  to  take. 
Hence  the  right  to  recover  damages  for  breach  of  ''war- 
ranty" is  not  lost  by  acceptance.  Consequently  it  is 
possible  for  courts  to  give  mouth-honor  to  a  rule  that 
no  right  of  action  for  damages  from  breach  of  conditions 
\vill  survive  acceptance  of  the  goods,  and  yet  in  fact 
allow  action  for  breach  of  what  even  themselves  would 
call  a  condition  if  the  buyer  had  chosen  to  reject  the 
goods  as  tendered,  but  what,  for  the  purpose  of  allomng 
the  action,  they  do  choose  to  call  a  "warranty."  The 
fact  therefore  that  courts  say  "conditions  do  not  sur- 
vive acceptance"  does  not  necessarily  put  them  in  the 
position  of  so  holding  in  fact.*^ 

42 — Boston  Woven  Hose  Co.  v.  is  allowed  to  survive. 

Kendall,    178    Mass.    232;    Under-  Morse  v.  Union  Stock  Yards,  21 

wood  V.  Wolf,  131  111.  425;  Dalton  Ore.  289,  14  L.  R.  A.  157,  28  Pac.  2; 

v.  Bunn,  137  Ala.  175.  Lewis  v.  Rountree,  78  N.  C.  323; 

43— Cf.,  Springfield  Shingle  Co.  Morse   v.    Moore,   83    Me.   473,   23 

V.   Edgecome   Mill   Co.,   52   Wash.  Am.  St.  783,  22  Atl.  362. 

620,  and  Hurley-Mason  Co.  v.  Steb-  In  Day  v.  Poole,   52  N.  Y.  416, 

bins,  79  Wash.  366,  140  Pac.  381;  the    court    got    around    the    rule 

Fairbank  Co.  v.  Metzger,  118  N.  Y.  largely  on  the  argument  that  the 

260,  where  the  statement  concern-  buyer  had  accepted  the  goods  on 

ing  the  goods  is  clearly  part  of  the  the  seller's  promise  that  he  would 

identifying     description,     but     Is  make  good  for  the  defect, 

called  a  "warranty"  and  as  such  The     subject     of    "wairanties", 

♦See  Uniform  Sales  Act,  Section  11,  (1),  49. 


176  THE  LAW  OF  SALES 

2.     Possession,  but  not  Title,  Acquired 

The  rights  of  a  buyer  who  has  received  possession  of 
the  goods  but  not  title  to  them  are,  of  course,  consistent 
with  the  seller's  rights.  These  latter  have  already  been 
discussed  under  the  appropriate  heading.** 

Right  to  Keep  Possession.— So  long  as  the  buyer  is  not 
in  default,  if  the  contract  provides,  expressly  or  im- 
pliedly, that  he  shall  have  possession  he  is  entitled  to 
keep  possession  and  can  sue  the  seller  for  any  trespass 
upon  that  right.*^ 

The  buyer's  right  of  possession  is  not  opposed  to  the 
seller  only,  but  he  can  maintain  actions  of  trespass, 
replevin,  etc.,  against  other  persons  who  unlawfully  inter- 
fere with  his  possession.*^ 

Right  to  Acquire  Title.— The  buyer  also  has  the 
right  to  acquire  title  by  payment,  or  performance  of 
whatever  may  be  the  condition,  according  to  the  terms 
of  the  contract.  A  buyer  who  is  not  in  possession  can 
not  acquire  title,  unless  he  can  get  a  decree  of  specific 
performance  in  equity,  without  some  act  of  passing  title 
on  the  part  of  the  seller.  But  when  the  buyer  is  in  pos- 
session of  the  goods,  his  mere  tender  of  payment,  or  of 
performance  of  other  conditions,  is  sufficient  to  vest  title 

■what  they  are,  when  they  exist,  some  courts  hold  that  the  seller 

rights   arising   therefrom,   etc.,  is  can  not  retake  possession  without 

discussed  post,  p.  180.  a  demand   for  performance,   New 

44 — Ante,  p.  99.  Home  etc.  Co.  v.  Bothane,  70  Mich. 

45— Clark    v.    Clement,    75    Vt.  ^'^^• 

417;  Richardson  V.  G.  W.  Mfg.  Co.,  46— Harrington     v.     King,     121 

3  Kan.  Ap.  445;  Wellden  v.  Witt,  Mass.  269;  Aldrich  v.  Hodges,  164 

145  Ala.  605,  40  So.  126;  Western  Mass.  570,  even  though  the  seller 

Union  Sewing  Mach.  Co.  v.  Sachs,  also   has    brought    an    action    for 

67  N.  Y.  S.  2;  Cushman  v.  Jewell,  conversion  against  the   same   de- 

7  Hun.  (N.  Y.)  525,  even  after  de-  fendant;  Freedman  v.  Phillips,  82 

fault,  if  the  seller  has  waived  the  N.  Y.  S.  96;  Lord  v.  Buchanan,  69 

default.  Vt.  320,  60  Am.   St.   933;    Messen- 

Even  if  the  buyer  is  in  default,  ger  v.  Murphy,  33  Wash.  353. 


THE  BUYER'S  RIGHTS  177 

in  himself.*''     This  right  to  acquire  title  he  can  also 
transfer  to  other  persons." 

Even  after  the  buyer  has  lost  possession  through  the 
retaking  by  the  seller,  it  has  been  held  that  the  right  to 
acquire  title  by  tender  of  payment  is  still  in  him.*®  ^  But 
this  must  presuppose  that  the  seller's  retaking  has  not 
been  by  way  of  a  proper  rescission  of  the  contract. 

Right  to  Return  the  Goods. — If  the  buyer  is  in  default, 
he  can  not  avoid  further  performance  of  the  contract  by 
returning  the  possession  of  the  goods,  against  the  seller's 
mil.  The  obligation,  or  promise,  to  return  the  goods  in 
case  of  default  is  for  the  benefit  of  the  seller,  not  of  the 
buyer,  and  it  does  not  authorize  the  buyer  to  return  the 
goods  and  escape  further  payments.^" 

"Whether  the  seller,  who  of  his  own  volition  retakes 
possession  of  the  goods,  can  thereafter  hold  the  buyer 
liable  for  further  payments,  has  already  been  discussed." 

Right  to  a  Return  of  Money  Paid. — If  the  seller  exer- 
cises his  right  to  retake  possession  he  need  not,  ex- 
cept as  provided  by  statute,  return  any  of  the  buyer's 
payments  as  a  condition  precedent  to  the  retaking.^^ 

47— Birmingham     Ry.     Co.     v.  Mass.  445;  Cushman  v.  Jewell,  7 

Bowers,  110  Ala.  322;   Currier  v.  Hun.  (N.  Y.)  525. 

Knapp,  117  Mass.  324;   Hervey  v.  49 — Miller  v.  Steen,  30  Cal.  402; 

Dimond,  67  N.  H.  342,  68  Am.  St.  Foundry    Co.    v.    Pascagoula,    72 

673,  39  Atl.  331;  Albright  v.  Mere-  Miss.  608. 

dith,  58  O.  S.  194;  Christenson  v.  But  the  buyer  can  not  vest  title 
Nelson,  38  Ore.  43,  63  Pac.  648,  in  himself  by  tender  of  payment 
even  though  the  tender  be  made  after  the  goods  have  been  de- 
tefore  performance  is  due;  Cush-  stroyed  while  in  the  seller's  re- 
man v.  Jewell,  7  Hun.  (N.  Y.)  525,  possession.  Hollenberg  Music  Co. 
idem;  Pease  v.  Teller  Corp.,  158  v.  Barron,  100  Ark.  403. 
Cal.  807.  50 — Robinson's  Appeal,  63  Conn. 

48— Bailey  v.  Colby,  34  N.  H.  26.  290;  Finlay  v.  Ludden  &  Bates  Co., 

66  Am.  Dec.   752;    Christenson  v.  105  Ga.  264;   Smalback  v.  Wolffe, 

Nelson,  38  Ore.  43,  63  Pac,  648.  46    N.    Y.    S.    968;    Ainsworth    v. 

The  sub-buyer  will  acquire  title  Rhines,  60  N.  Y.  S.  876. 

upon   the  original  buyer's  tender  51 — Ante,  p.  106. 

of  payment,   Day  v.   Bassett,   102  52 — Ante,  p.  103.  See  also  White 


178  THE  LAW  OF  SALES 

The  buyer's  right  after  such  retaking  to  get  back  what 
he  has  paid,  less  reasonable  compensation  for  use,  is 
another  matter  and  is  recognized  by  some  decisions. 
A  number  of  courts,  notably  in  jurisdictions  which 
require  "disaffirmance"  as  a  condition  precedent  to 
retaking  of  possession,  lean  toward  the  feeling  that  "To 
permit  the  so-called  'lessor'  (seller)  to  resume  posses- 
sion of  the  property,  and  declare  all  payments  forfeited, 
when  perhaps  all  but  one  may  have  been  paid,  is  con- 
trary to  the  fundamental  principles  observed  in  courts 
of  equity. '  '^*  The  theory  is  probably  the  same  one  often 
given  as  reason  for  not  allowing  the  seller  to  enforce 
further  payment  after  retaking  possession,  namely,  that 
such  retaking  amounts  to  a  rescission  of  the  contract.^* 

3.     Title,  but  not  Possession,  Acquiked 

When  title  has  passed  to  the  buyer,  he  has,  of  course, 
the  concomitant  right  of  immediate  possession,  unless  his 
agreement  with  the  seller  provides  otherwise,  or  unless 
the  rights  of  the  seller,  as  already  set  forth,  give  the 
seller  a  temporary  right  of  possession.  The  seller  has  a 
lien  until  payment,  unless  he  has  given  credit,  and  conse- 
quently the  buyer  can  not  enforce  dehvery  of  possession 
in  such  case  until  he  has  paid.    On  the  other  hand,  if  the 

V.  Oakes,  88  Me.  367;   Thulby  v.  N.  C.  377;  Snook  v.  Reglan,  89  Ga. 

Rainbow,   93    Mich.   164,   if  buyer  251,    buyer    may    sue    for    money 

terminates   contract  by  wrongful  had    and    received,    and    recover 

resale,  demand  must  first  be  made  sum    paid    less    reasonable    rent, 

by    seller,   to    show    a    "disaffirm-  etc.;    Foundry   Co.   v.   Pascagoula 

ance"    of    the    contract;     Sewing  Ice  Co.,  72  Miss.  608,  "the  reserva- 

Mach.    Co.   V.   Bothame,   70   Mich,  tion  of  the  title  is  but  as  security 

443,  but  this  was  a  hard  case  such  for  the  purchase  price,  and  if  the 

as   tend   to   shipwreck   principles,  property  is  recovered  by  the  sell- 

Cf.  Tufts  V.  D'Arcambal,  85  Mich,  er,  he  must  deal  with  it  as  secur- 

185;     Colcord    v.    McDonald,    128  ity,    and    with    reference    to    the 

Mass.  470.  equitable  right  of  the  purchaser." 

Contra,  Hayes  v.  Jordan,  85  Ga.  54— Snook  v.  Raglan,  89  Ga.  251; 

741;    Kotchum    v.    Cummings,    53  Preston  v.  Whitney,  23  Mich.  260. 

Miss.  596.  Contra,   Tufts   v.    D'Arcambal,    85 

53— Puffer  &  Sons  v.  I.ucas,  112  Mich.  185. 


THE  BUYER'S  RIGHTS  179 

seller  has  given  credit,  the  buyer  is  entitled  to  possession, 
regardless  of  payment,  if  his  credit  is  still  good.  As  this 
right  of  possession  of  the  buyer  is  merely  the  complement 
of  the  seller's  right  of  possession  after  title  has  passed, 
and  as  that  latter  right  has  already  been  fully  discussed,^^ 
it  is  unnecessary  to  discuss  it  further  in  this  place. 

Titular  Action. — If  the  buyer  does  have  the  right  of 
possession,  he  is  invested  with  all  the  remedies  such  as 
replevin  or  trover,  available  to  any  owner  who  is  kept 
from  his  lawful  possession.* 

This  right  of  the  buyer  to  have  possession  when  he 
has  acquired  title  exists,  so  far  as  practically  enforcible, 
even  in  those  cases  where  the  sale  has  been  of  an  undi- 
vided part  of  a  larger  mass.  We  have  already  seen  that 
while  there  can  be  no  title  to  unspecified  property  at  all, 
the  parties  can  pass  a  particular  interest  in  some  specific 
larger  mass  if  they  desire  to  do  so,  and  that  such  a 
desire  will  be  presumed  in  this  country  in  case  of  sale 
of  an  unseparated  part  of  a  larger  mass  of  fungible 
goods. ^®  In  such  cases  it  is  settled  that  the  buyer,  whether 
or  not  he  be  called  owner,  can  maintain  a  possessory 
action  of  some  sort  against  the  seller.^''' 

The  buyer  who  has  acquired  title,  but  not  yet  received 
possession,  may  lose  his  title  and  right  to  possession 
through  the  wrongful  acts  of  the  seller,  in  certain  cases. 
This  matter  is  discussed  under  the  topic  of  rights  of 
third  persons.^* 

Breach  of  Warranty. — We  have  seen  that  statements, 
either  express  or  implied,  in  regard  to  the  goods  may 

55 — A7ite,  p.  115.  replevin;  Hurff  v.  Hires,  11  Vroom. 

56 — See  ante,  p.  63.  (N.   J.)    581,  trover;    Kimberly  v. 

57— Piazzek   v.   White,   23   Kan.  Patchin,  19  N.  Y.  330,  trover;  H^ll 

621,    replevin;     Halsey    v.     Sim-  v.   Boston   &   W.   R.   R.,   14   Allen 

monds,  85  Ore.  324,  166  Pac.  944,  (Mass.)  439,  conversion, 

replevin ;  Seldomridge  v.  Bank,  87  58 — Post,  p.  212. 
Neb.  531,  30  L.  R.  A.   (n.  s.)   337, 

*See  Uniform  Sales  Act,  Section  66. 


180  THE  LAW  OF  SALES 

be  treated  as  part  of  the  identifying  description  of  the 
goods.  In  such  case  goods  which  do  not  conform  to  the 
statements  are  not  the  goods  contracted  for  by  the  buyer 
and  he  need  not  take  title  to  them  unless  he  so  chooses. 
These  statements  which  serve  to  identify  the  goods  con- 
tracted about  are  properly  called  **  conditions. " 

What  a  Warranty  Is. — But  the  seller  may  make 


statements  about  the  goods  contracted  for  which,  while 
they  serve  to  characterize  the  goods,  are  not  in  fact  re- 
lated to  the  identity  of  the  goods.  For  instance,  the  con- 
tract of  sale  may  refer  to  some  specific  article  whose 
identity  is  so  fixed,  not  by  description  only,  but  by  actual 
demonstration,  that  there  can  be  no  doubt  as  to  just  what 
tangible  thing  is  concerned  in  the  contract.  But  at  the 
same  time  the  seller  may  make  a  positive  statement  as 
to  the  character,  or  quality,  or  nature  generally  of  the 
article.  Such  a  statement,  while  in  a  sense  descriptive 
of  the  article,  does  not  in  the  least  serve  to  identify 
the  subject  matter  of  the  contract.  In  a  sense  there  is 
a  conflict  of  description — the  oral  description  of  char- 
acteristics of  the  article  does  not  accord  with  the  visual 
description  by  demonstration.  But  obviously,  since  it 
is  a  tangible,  visible  thing  that  is  contracted  about, 
rather  than  a  mere  conceptual  thing,  the  demonstration 
should  dominate  the  inconsistent  oral  statements,  so 
far  as  concerns  the  identity  of  the  thing  to  which  the 
parties  probably  intended  to  transfer  title. 

These  parts  of  descriptions  which  do  not  affect  the 
real  identity  of  the  thing  contracted  about  are  called 
*  Svarranties  ".^®  The  name  warranty  is  not  limited  to 
them,  however.  We  have  seen  that  if  a  buyer  chooses  to 

59 — "A  warranty  is  an  express  Hurley-Mason  Co.  v.  Stebbins,  104 
or  implied  statement  of  something  Wash.  171,  140  Pac.  381. 
which  a  party  understands  shall  "When  the  subject  matter  of  a 
be  a  part  of  a  contract,  and,  sale  is  not  in  existence,  or  not  ae- 
though  part  of  the  contract,  col-  certained  at  the  time  of  the  con- 
lateral  to  the  express  object  of  it."  tract,     an     undertaking     that     it 


THE  BUYER'S  RIGHTS 


181 


accept  title  to  goods  tendered,  despite  their  non-conform- 
ity to  the  identifying  description,  or  other  conditions,  he 
does  not,  in  some  states,  waive  all  his  rights  growing  out 
of  the  breach.  He  may  still  sue  to  recover  damages 
resulting  from  the  breach.  These  terms  of  the  des<?rip- 
tion,  which  could  have  been  taken  advantage  of  as  con- 
ditions precedent,  but  which  have  been  waived  as  such 
and  exist  only  as  a  basis  for  recovery  of  damages  are 
usually  also  called  "warranties".®"  Sometimes  they  are 
called  warranties  before  they  have  been  waived  as  cause 
for  refusing  title.  The  name,  therefore,  while  it  may 
be  a  convenience  in  expression,  indicates  nothing  as  to 
the  rights  of  the  buyer,  unless  its  particular  meaning  is 
expressly  indicated.  "VVe  shall  use  "warranty,"  here- 
after, unless  otherwise  indicated,  in  its  narrower  sense 
of  a  descriptive  statement  concerning  the  goods,  which 
could  not  be  used,  or  has  not  been  used,  as  part  of  the 
identifying  description.^^* 


shall,  when  existing  or  ascer- 
tained, possess  certain  qualities, 
is  not  a  mere  warranty,  but  a  con- 
dition *  *  *  because  the  exist- 
ence of  those  qualities  being  part 
of  the  description  of  the  thing 
Bold  becomes  essential  to  its 
identity".  Pope  v.  Allis,  115  U.  S. 
363;  United  Iron  Works  Co.  v. 
Henryetta  Coal  Co.,  62  Okla.  99, 
162  Pac.  209. 

60 — Jones  v.  Witousek  Co.,  114 
la.  14;  North  Alaska  Salmon  Co. 
V.  Hobbs,  159  Cal.  380. 

61 — The  term  is  also  used,  not 
infrequently,  in  reference  to  the 
contract,  the  promise,  which  is  im- 
plied by  law,  as  is  hereafter  dis- 
cussed, from  these  statements. 
This  is  apt  to  cause  especial  diffi- 
culty because  of  the  expressions 
"Implied  warranty"  and  "Express 
warranty".     The  duplex  usage  of 

•See  Uniform  Sales  Act,  Section 


"warranty"  leaves  it  uncertain  in 
such  expressions  whether  an  "ex- 
press warranty"  means  an  express 
promise  or  only  an  express  state- 
ment from  which  the  necessary 
promise  will  be  implied.  Con- 
versely, "implied  warranty"  may 
mean  an  implied  statement  from 
which  a  promise  will  be  implied  in 
law,  or  it  may  mean  a  promise 
which  is  implied  from  an  express 
statement.  The  expressions  are 
more  commonly  used  in  reference 
to  the  statement,  than  to  the 
promise,  and  will  be  here  so  used, 
unless  otherwise  indicated. 

The  term  "warranty"  is  used  of 
representations  of  fact  or  prom- 
ises wholly  unconnected  with  any 
sale  in  Cameron  v.  Mount,  68  Wis. 
477;  Kuehn  v.  Wilson,  13  Wis. 
104,  "warranty"  that  a  horse  would 
be  cured  by  certain  treatment. 
12. 


182  THE  LAW  OF  SALES 
Eif ect  of  Breach  of  Warranty. — Return  of  Goods. — 


Restricting  the  term  ** warranty"  to  statements  con- 
cerning quality,  etc.,  of  goods  objectively  identified  in 
other  ways,  there  is  rather  hopeless  conflict  as  to  whether 
property  purchased  can  be  returned  for  breach  of  war- 
ranty. 

Many  jurisdictions  do  allow  the  buyer  to  return  the 
goods  and  recover  the  purchase  price  if  already  paid.  In 
the  often  cited  case  of  Smith  v.  Hale^^  the  facts  were  that 
Smith  had  sold  a  certain  old  buggy  to  Hale.  At  the  time, 
some  question  about  the  strength  of  its  springs  having 
arisen,  Smith  ''warranted"  that  they  would  bear  up 
under  a  certain  weight.  Some  months  later  a  spring 
broke  under  a  less  weight.  Hale  thereafter  tendered 
the  buggy  back  to  Smith  and,  on  Smith's  refusal  to 
accept  it,  entered  Smith's  premises  and  took  away  the 
cow  which  he  had  given  in  exchange  for  the  buggy.  The 
court  held  that  Hale  was  justified  in  taking  the  cow  as 
he  had  a  right  to  rescind  the  contract  because  of  the 
broken  spring. 

The  theory  on  which  such  rescission  is  allowed  is  abso- 
lutely indeterminate.  Where  parties  have  dealt  about 
an  article  definitely  identified  by  ocular  demonstration, 
there  would  seem  no  possible  doubt  as  to  the  specific 
object  which  the  one  has  contracted  to  sell  and  the  other 
to  buy.  Our  whole  theory  of  chattel  property  is,  orig- 
inally, objective.  There  is  suggestion,  however,  in  some 
cases  that  the  subjective  nature  as  well  as  the  objective 
may  have  a  part  in  identifying  the  object  matter  of  the 
contract.  In  one  case,  for  instance,^'  the  plaintiff  had 
agreed  to  buy  and  the  defendant  to  sell  a  certain  specific 
cow  named  ''Rose  2nd  of  Aberlone."  Both  parties  sup- 
posed at  the  time  that  she  was  barren.  Later  it  developed 
that  she  was  fertile.  The  plaintiff  was  denied  a  recovery 
on  various  theories.     One  of  them  was  that,  the  cow 

62—158   Mass.   178.  6;j— Sherwood     v.     Walker,     66 

Mich.  568. 


THE  BUYER'S  RIGHTS  183 

being  not  barren,  but  fertile,  she  was  not  in  fact  the 
animal  the  defendant  intended  to  sell.^*  On  this  theory, 
that  every  material  statement  as  to  the  nature  of  the 
chattel  sold  is  part  of  the  identifying  description,  there  is 
no  such  thing  as  a  warranty.  Every  ''warranty" 
becomes  a  condition.®^ 

Another  theory  is  that  although  the  parties  have  con- 
tracted concerning  the  specific  property  delivered  and 
received,  they  have  been  mutually  mistaken  regarding 
its  nature.  Because  of  this  mutual  mistake  a  rescission 
will  be  allowed.^^ 

As  a  matter  of  fact  the  cases  are  probably  sui  generis. 
The  whole  modern  idea  of  warranty  is  that  a  promise  to 
indemnify  is  judicially  "implied",  or  simply  imposed,  as 
the  result  of  an  express  or  implied  statement  about  the 
goods.  If  the  courts  can  imply  a  promise  to  indemnify  the 
buyer,  there  is  no  reason  why  they  can  not  imply  a 
promise,  or,  what  is  the  same  thing  in  effect,  impose  a 
liability  to  take  back  the  goods.  At  any  rate,  many  courts 
allow  the  buyer  to  return  the  goods  and  recover  his 
money.^'^* 

64 — Accord,   Harvey   v.    Harris,  kept  the  note.    The  court  held  this 

112  Mass.  32;  Gardner  v.  Lane,  12  lieeping   to    be    a    taking   on    the 

Allen     (Mass.)     39;     Chapman    v.  theory  that  the  owner  had  never 

Cole,  12  Gray  (Mass.)  141.  given  the  £10  note  to  the  defend- 

65 — This  idea,  that  the  concept  ant  and  the  legal  possession  of  it 

in  the  minds  of  the  parties  is  the  had  continued  always  in  the  orig- 

real  subject  matter  cf  their  con-  inal  owner.     Wolfstein  v.  People, 

tract   and   their   objective   indica-  6  Hun  (N.  Y.)  121. 

tion   of  some   tangible   chattel   is  On  the  other  hand  these  cases 

only  an  incorrect  attempt  at  de-  are  out  of  harmony  with  those  lu 

scribing  it,  is  supported  by  some  which    a    seller    is    held    to    have 

of  the  cases  in  criminal  law.    Lar-  dealt  with  the  physical  personality 

ceny  requires  a  wrongful   taking  before  him  regardless  of  the  con- 

of  property.     In  Regina  v.  Hehir,  cept    of    personality    which    may 

[1895]  2  Ir.  R.  709,  the  owner  had  have  been  in  his  mind.     See  post, 

deliberately  given  a  certain  tangi-  p.  227. 

ble  piece  of  paper  to  the  defend-  66 — Newell   v.   Smith,   53   Conn, 

ant.      Both    parties    thought    this  72;  Sherwood  v.  Walker,  66  Mich, 

tangible  thing  was  a  £1  note.    In  568. 

fact  it  was  a  £10  note.    On  discov-  67 — Western  Commercial  Co.  v. 

ering  the  mistake   the   defendant  Western  Wholesale   Drug  Co.,  29 

*See  Uniform  Sales  Act,  Section  69,  (1),  (2),  (3),  (4),  (5). 


184 


THE  LAW  OF  SALES 


On  the  other  hand,  many  courts  proceed  on  the  theory 
that  the  parties  have  contracted  concerning  a  specific 
chattel.  If  the  seller  has  delivered  that  chattel  he  has 
performed  his  contract  to  sell,  and  his  contract  of  war- 
ranty is  not  an  agreement  to  take  back  the  chattel,  but 
only  to  pay  damages  resulting  from  the  false  statement.^* 

Effect  of  Breach  of  Warranty. — Suit  for  Damages. 


— ^Whether  the  buyer  can  return  the  goods  after  breach  of 
warranty,  or  not,  if  he  does  not  do  so  he  has  a  right  of 
action  against  the  seller  for  damages  resulting  from  the 
incorrect  statement.^® 


Cal.  Ap.  Dec.  25,  rescission  of  the 
contract  was  allowed  even  after  a 
resale  by  the  buyer;  Autofedan 
Hay-Press  Co.  v.  Ward,  89  Kan. 
218;  North  Alaska  Salmon  Co.  v. 
Hobbs,  159  Cal.  380,  dictum; 
Feeney  &  B.  Co.  v.  Stone,  89  Ore. 
360,  171  Pac.  569,  dictum;  Fulton 
Bank  v.  Mathers,  183  la.  226,  166 
N.  W.  1050;  Hoyer  v.  Good.  — 
la.  — ,  161  N.  W.  691,  sale  of  a 
specific  horse,  warranted  "sound"; 
Jones  V.  Witousek  Co.,  114  la.  14; 
International  Harvester  Co.  v. 
Brown,  182  Ky.  435,  206  S.  W.  622, 
dictum;  of.  Lightbum  v.  Cooper, 
1  Dana  (Ky.)  273;  Bryant  v.  Is- 
burg,  13  Gray  (Mass.)  607,  prob- 
ably the  leading  case;  Frih  &  Co. 
V.  HoUan,  133  Ala.  583,  dictum; 
Campbell  v.  Thorp,  36  Fed.  414, 
dictum;  MUliken  v,  Skillings,  89 
Me.  180. 

Even  in  these  states  the  right  to 
rescind  may  be  lost  by  long  de- 
lay, Autofedan  Hay  Press  Co.  v. 
Ward,  supra;  International  Har- 
vester Co.  V.  Brown,  supra;  Cf. 
Lightburn  v.  Cooper,  1  Dana  (Ky.) 
273 ;  Storage  Battery  Co.  v.  Water- 
loo Ry.  Co.,  138  la.  369,  semhle; 
Sturgis  v.  Whistler,  145  Mo.  Ap. 
148. 


Of  course,  an  express  provision 
in  the  contract,  providing  for  re- 
scission in  case  of  breach  of  war- 
ranty will  be  given  effect.  Dick 
V.  Clark  Jr.  Elec.  Co.,  161  Ky.  622. 

Also,  such  misrepresentation  as 
amounts  to  actual  fraud  will  jus- 
tify a  rescission  on  that  ground, 
Taylor  v.  First  National  Bank,  25 
Wy.  204,  167  Pac.  707. 

68— H.  W.  Williams  Transporta- 
tion Co.  V.  Darius  Cole  Co.,  129 
Mich.  209;  Worchester  Mfg.  Co.  v. 
Waterbury  i*ress  Co.,  73  Conn. 
554;  Thornton  v.  Wynn,  12  Wheat. 
184;  Wright  v.  Davenport,  44  Tex. 
164;  Street  v.  Blay,  2  B.  &  A.  456. 

In  the  case  of  a  conditional  sale, 
if  the  chattel  actually  offered  for 
the  buyer's  possession  is  not  the 
chattel  which  the  seller's  contract 
bound  him  to  present,  the  buyer 
can  refuse  to  receive  it  and  can 
sue  for  breach  of  the  seller's 
promise.  But  if  the  chattel  de- 
livered to  the  buyer  is  in  fact  the 
one  the  seller  contracted  to  de- 
liver, although  its  characteristics 
are  not  what  the  buyer  thought 
they  would  be,  or  if  the  buyer 
has  consented  to  receive  posses- 
sion of  some  other  chattel  than 
the  one  specifically  called  for  by 


THE  BUYER'S  RIGHTS 


185 


The  theory  on  which  this  liabiUty  for  false  warranty 
is  based  is  threefold. 

The  hability  was  originally  considered  as  arising  in 
tort,  and  courts  gave  compensation  for  the  damage  caused 
by  the  seller's  deceit.'''^  And  this  theory  and  form  of 
action  are  not  obsolete.''^ 

But,  even  in  this  form,  it  now  differs  from  the  ordi- 
nary action  in  tort  for  deceit  or  fraud,  to  the  extent  that 


the  contract,  in  such  case  he  can 
not  hold  the  seller  for  damage  re- 
sulting from  such  difference  until 
he  has  acquired  the  title.  Thus 
in  an  action  by  the  seller  to  re- 
cover possession  of  the  chattel  on 
the  ground  that  the  buyer  has 
failed  to  pay  as  agreed  the  buyer 
can  not  defeat  the  action  by  a 
showing  that  his  damages  from 
non-conformity  of  the  chattel  to 
the  warranty  are  in  excess  of  the 
amount  of  the  unpaid  purchase 
price.  The  rule  is  that  "a  war- 
ranty is  an  incident  only  of  con- 
summated or  completed  sales  and 
has  no  place  as  a  contract,  hav- 
ing present  vitality  and  force,  in 
an  executory  contract  of  sale." 

Osborn  v.  Gantz,  60  N.  Y. 
540;  EJnglish  v.  Hanford,  27  N. 
Y.  S.  672,  but  an  action  for  fraud 
or  deceit  may  be  maintained.  Car- 
penter V.  Chapman,  139  N.  Y.  S. 
849,  but  damages  for  breach  of 
warranty  were  allowed  to  be  set- 
off against  a  claim  for  the  pur- 
chase price;  People  v.  Munson, 
144  N,  Y.  S.  1077,  semble;  Stearns 
V.  Drake,  24  R.  I.  272;  Blair  v.  A. 
Johnson  &  Sons,  111  Tenn.  Ill,  at 
least  not  by  way  of  set-off  or  re- 
coupment in  a  seller's  action  of 
replevin. 

69 — Breach  of  warranty  not 
waived  by  acceptance  with  knowl- 
edge  thereof,    Grisinger   v.    Hub- 


bard, 21  Idaho  469;  Gold  Ridge 
Mining  Co.  v.  Tallmadge,  44  Ore. 
34;  Frith  &  Co.  v.  Hollan,  133  Ala. 
583;  Wallack  v.  Clark  &  Son,  — 
Okla.  — ,  174  Pac.  557,  citing  much 
authority;  Alaska  Salmon  Co.  v. 
Hobbs,  159  Cal.  380;  Rice  v. 
Friend  Bros.  Co.,  179  la.  355,  161 
N.  W.  310,  not  lost  because  of 
attempted,  but  unsuccessful,  re- 
scission, nor  because  contract 
contained  a  provision  permitting 
return  of  the  goods;  Boston 
Woven  Hose  Co.  v.  Kendall,  178 
Mass.  232,  not  lost  even  though  the 
defect  was  obvious  on  inspection; 
Regina  Co.  v.  Gately  Co.,  157  N.  Y. 
S.  746,  "At  common  law  an  express 
warranty  survives  acceptance,  but 
an  implied  warranty  (condition?) 
does  not." 

71 — Ames,  History  of  Assump- 
sit, 2  Harvard  Law  Rev.  8.  That 
form  of  action  is  used  in  Freeman 
V.  Baker,  5  Car.  &  P.  475,  and 
Pickering  v.  Dowson,  4  Taunt.  779, 
and  the  liability  discussed  on  the 
theory  of  deceit. 

72— West  V.  Emery,  17  Vt.  583; 
Johnson  v.  McDaniel,  15  Ark.  109; 
Ives  V.  Carter,  24  Conn.  392;  Car- 
ter V.  Glass,  44  Mich.  154;  Dobell 
V.  Stevens,  5  D.  &  Ry.  490;  Lang- 
ridge  V.  Levy,  2  M.  &  W.  519; 
Brown  v.  Edgington,  2  M.  &  G. 
279. 


186  THE  LAW  OF  SALES 

in  suing  for  deceit  on  a  warranty  it  is  not  necessary  to 
aver  that  the  defendant  knew  the  warranty  to  be  falseJ* 

The  seller's  liability  is  also  based  on  the  theory  of 
contract,  the  idea  being  that  in  making  the  statement 
the  seller  impliedly  promises,  on  the  same  consideration 
that  supports  the  promise  to  pass  title,  that  if  the  state- 
ment be  not  true  he  will  stand  responsible  in  damages.''* 

This  theory,  that  the  seller's  liability  is  one  assumed 
by  him  as  a  part  of  the  contract,  logically  implies  an 
intention  on  his  part  so  to  do;  a  conscious  assumption 
of  hability,  even  though  such  intention  may  necessarily 
have  to  be  determined  objectively.  In  the  earlier  cases 
it  was  held  to  be  essential  that  this  intent  to  assume  the 
liability  be  truly  evident  from  the  circumstances.  Some 
of  them  even  indicate  that  some  express  indication  of 
intention,  such  as  the  actual  use  of  the  word  ''warrant" 
in  the  contract,  was  necessary .''^^  And  there  is  still  strong 
suggestion  in  some  cases  that,  even  though  express 
intent  need  not  appear,  a  real  or  at  least  a  probable 
intent  to  assume  the  liability  must  be  shown  by  the  facts 
of  the  transaction.''^ 

The  third  theory  gives  mouth-honor  to  the  idea  of  con- 
tract, but  really  simply  imposes  a  liability  on  the  seller 

73 — Williamson    v.     Allison,    2  was  in  contract  and  not  in  tort. 

East  446,  cited  in  Carter  v.  Glass,  Roscorla  v.  Thomas,  3  Q.  B.  234, 

44  Mich.  154.  holding    "consideration"    for    the 

74 — Baldwin   v.    Daniel,    69    Ga.  warranty  to  be  essential. 

782;    Congar   v.    Chamberlain,    14  75 — Chandler     v.     Lopus,     Cro. 

Wis.    258.      The   American   editor  Jac.  4,  as  discussed  by  Mr.  Ames 

of  Benjamin  on  Sales,  7th  ed.,  p.  in  2  Harvard  Law  Rev.  9;  DeSew- 

663,  says,  with  the  citation  of  con-  hanberg   v.    Buchanan,   5    Car.    & 

siderable  authority,  "A  warranty,  P.  343. 

therefore,    being    a    contract,    re-  76 — Borrekin  v.  Bevan,  3  Rawle 

quires,  like  all  other  contracts  a  (Pa.)   23,  23  Am.  Dec.  85;   Weth- 

consideration  to  support  it."  Wels-  erill  v.  Neilson,  20  Pa.  448,  59  Am. 

hausen    v.   Parker   Co.,    83    Conn.  Dec.  741;   Coats  v.  Hord,  29  Cal. 

231,  "without  a  contract  there  can  Ap.,  115,  154  Pac.  491;  Henson  v. 

be  no  warranty."     In  Jackson  v.  King,  3  Jones   (N.  C.)   419;   Har- 

Watson   &    Sons    [1909]    2   K.   B.  gous  v.  Stone,  5  N.  Y.  73;  Lichten- 

193,    the    decision   turned    on   the  stein   v.   Rabolinski,   90   N.   Y.   S. 

specific    holding    that    the    action  247,  aff.  184  N.  Y.  520. 


THE  BUYER'S  RIGHTS  187 

as  a  matter  of  public  policy.  This  liability  has  no  rela- 
tion whatever  to  any  real  intent  of  the  seller.  It  is  a 
liability  which  follows,  as  a  matter  of  law,  from  his  act 
of  selling  goods  under  certain  circumstances.  Theoreti- 
cally there  is  a  basic  legal  distinction  between  a  liability 
arising  from  the  intentional  and  conscious  assumption 
of  liability,  even  though  such  intent  be  objectively  deter- 
mined, and  a  liability  which  follows  arbitrarily  from 
certain  acts  of  the  seller,  regardless  of  his  probable 
intent.  Theoretically  they  ought  to  be  kept  distinct 
in  discussion.  But  actually  the  courts  do  not  make  the 
distinction.  They  use  the  phrase  "liability  on  a  war- 
ranty" to  cover  both  reasons  for  the  liability,  and  ordi- 
narily disregard  all  reference  to  actual  intent  while  at 
the  same  time  talking  of  ''implied  warranties"  as  though 
a  promise  were  really  implied  by  the  facts.  In  other 
words,  "implied"  ma?/  now  mean  implied  by  the  facts,  but 
usually  means  "imposed  by  law."  The  discussion  there- 
fore must  follow  this  lead.  The  question  of  warranty  or 
no  warranty  has  long  ceased  to  be,  "Did  the  seller  intend 
to  warrant?"  and  has  become,  "Does  the  law  impose  a 
liability  in  this  type  of  case?"''''' 

What  Are  Warranties? — We  may  say  generally, 


then,  that  a  "warranty"  is  a  statement  by  the  seller  in 
regard  to  the  goods  for  which  the  courts  will  require  him 
to  make  good  in  damages  if  it  be  not  true. 

Not  all  express  statements  concerning  the  goods  are 
warranties — that  is  to  say  they  do  not  create  a  legal 
liability.  As  we  have  already  seen  from  the  origin  of 
the  buyer 's  right,  they  must  be  acted  upon  by  the  buyer, 
either  by  giving  consideration  for  them  or  by  otherwise 
relying  upon  them  to  his  detriment.    Furthermore,  mere 

77— Carleton  v.  Lombard,  Ayres  Greer  v.  Whalen,  125  Md.  273,  use 

&  Co.,  149  N.  Y.  137;  Cook  v.  Dar-  of  word   "warrant"   unnecessary; 

ling,   160    Mich.    475;    McClure   v.  and   see   authorities   cited   in  the 

Central  Trust  Co.,  165  N.  Y.  108,  foHowing  notes. 
53   L.    R.   A.    153,   58   N.   E.    777; 


188  THE  LAW  OF  SALES 

statements  of  opinion,  even  though  relied  on  by  the 
buyer,  do  not  create  any  hability  on  the  part  of  the 
seller.'^** 

Similarly,  a  statement  which  is  obviously  untrue  and 
therefore  could  not  have  mislead  the  buyer  does  not 
create  a  liability  on  the  seller  for  its  untruth.  On  the 
theory  that  a  warranty  is  a  false  statement  of  fact  which 
gives  rise  to  an  action  in  tort  for  deceit,  it  is  evident 
that  the  buyer  would  have  no  action,  because  he  was  not 
deceived.  On  the  theory  that  a  warranty  is  a  statement 
from  which  the  courts  vdll  infer  a  promise  to  answer  for 
its  inaccuracy,  or  because  of  which  the  courts  will  impose 
liability  as  a  matter  of  public  policy,  it  is  equally  evident 
that  no  promise  could  be  reasonably  implied  and  no  lia- 
bility reasonably  imposed.*  Of  course,  if  there  were  not 
only  an  express  statement,  but  also  an  express  promise  to 
make  it  good,  the  courts  would  probably  enforce  the  con- 
tract even  though  the  buyer  did  know  it  to  be  untrue. 
The  damages,  however,  would  probably  be  nominal  only. 

Statements  which  the  courts  will  treat  as  warranties 
may  cover  any  characteristic  of  the  goods  whatever.  The 
seller  need  not  make  any  representations  about  the  goods, 
but  if  he  does  make  representations,  of  any  nature  what- 
soever, the  courts  may  imply,  or  impose,  therefrom  a 
promise  to  make  good  its  truth.  Whether  or  not  a  seller 
did  make  the  alleged  representations  is  purely  a  question 
of  fact,  to  be  determined  as  such.  If  it  is  settled  that  he 
did  make  a  certain  representation,  just  what  he  meant  by 
his  words  is  a  question  of  law.''^^   That  is  to  say,  it  is  a 

78— See  authorities  cited  under  174  N.  C.  442,  93  S.  E.  94G. 

opinion  as  a  "condition,"  ante,  p.  79 — Murchie     v.     Cornell,     155 

172  Picard  v.  McCormick,  11  Mich.  Mass.  60,  use  of  term  "ice"  held 

68,  statement  as  to  value  may  be  to     mean     clear     ice;      Sheffield 

a  warrantj'.      Seixas  v.   Woods,  2  Shingle  Co.  v.  Edgecomb  Mill  Co., 

Caines  48,  2  Am.  Dec.  215.  52  Wash.  620,  101  Pac.  2-33,  35  L,. 

Whether  or  not  an  express  state-  R.  A.    (n.   s.)    258,  "Star  A  Star" 

ment  is  a  mere  opinion  is  a  ques-  shingles   held  to  mean   a   certain 

tion  for  the  jury;  Kime  v.  Riddle,  (luality. 

*See  Uniform  Sales  Act,  Section  12. 


THE  BUYER'S  RIGHTS  189 

question  which  the  court  \\t.11  determine.  But  there  is  no 
rule,  and  can  be  none,  for  making  the  decision.  Each  case 
must  be  decided  according  to  its  own  facts.  And  whether 
the  statement  is  such  that  the  courts  will  impose  a  liabil- 
ity to  make  it  good  is  also  a  matter  for  the  court  itself. 

Implied  Warranties. — It  is  not  necessary  that  the 


seller  make  an  express  statement  in  order  to  be  liable  for 
the  truth  of  a  representation.  Certain  liability-creating 
representations  may  be  implied  by  the  circumstances  of 
the  transaction.  Or,  to  put  the  rule  in  words  more  nearly 
in  accord  with  the  decisions,  the  law  will  sometimes 
impose  a  liability  because  of  the  circumstances  of  the 
transaction,  regardless  of  any  actual  representation, 
express  or  tacit,  on  the  part  of  the  seller. 

Thus  the  issue  often  is,  does  the  law  *' imply  a  war- 
ranty"— or  impose  a  liability — in  the  particular  case. 

There  is  no  rule  deducible  from  the  cases  by  which 
this  question  can  always  be  answered.  Each  case  stands 
upon  its  own  facts — which  means  that  the  answer  rests 
in  the  particular  judge's  own  conclusions.®*'  But  there 
have  developed  certain  broad  rules,  both  positive  and 
negative,  as  to  when  a  liability  will  be  imposed  without 
an  express  representation  by  the  seller.* 

For  example,  one  who  sells  under  such  circumstances 
that  the  buyer  reasonably  supposes  him  to  be  o^\^ier, 
will  be  held  to  have  warranted  title  in  himself.  If  title 
was  not  in  him  at  the  time  of  the  sale  he  will  be  held 
liable  to  the  buyer  in  damages,  even  though  he  made  no 
statements  whatever  concerning  the  title.®^  But,  of 
course,  if  there  is  something  about  the  transaction  which 

80 — Whether  there  is  such  lia-  Va.  702;  Costigan  v.  Hawkins,  22 
bility  is  a  matter  of  law,  for  the  Wis.  74;  Sherman  v.  The  Cham- 
court  to  decide,  Heilbut  v.  Buckle-  plain  Trans.  Co.,  31  Vt.  162;  Boyd 
ton,  1913  A.  C.  30.  v,  Whitfield,  19  Ark.  447;   Linton 

81— Gaylor    v.    Copes,    16    Fed.  v.    Porter,    31    111.    107;    Word   v. 

49;    Byrnside    v.    Burdett,    15    W.  Cavin,  38  Tenn.  506. 

♦See  Uniform  Sales  Act,  Section  13,  (1),  (2),  (3),  (4),  14,  15,  (1), 
(2),  (3),  (4),  (5),  (6),  16. 


190  THE  LAW  OF  SALES 

would  indicate  to  a  reasonable  buyer  that  the  seller  was 
not  selling  as  owner — as  in  case  of  sale  by  a  sheriff,  pawn- 
broker, administrator,  etc. — he  will  not  be  liable  to  the 
buyer  in  damages  unless  he  expressly  promised  to  make 
good  any  lack  of  title  in  himself.®^ 

There  is  also  a  representation  implied  under  some  cir- 
cumstances, that  the  goods  as  in  other  respects  described 
shall  be  fit  for  the  purpose  for  which  the  buyer  intends 
to  use  them.  Li  Gold  Ridge  Mining  Co.  v.  Tallmadge,*^ 
the  defendant  had  sold  to  the  plaintiff  ' '  tAvo  hundred  full 
miners'  inches  of  first  or  second  water,"  which  he  knew 
the  plaintiff  intended  to  use  for  mining  purpose.  The 
water  as  delivered  was  too  full  of  debris  to  be  usable. 
In  deciding  that  the  seller  was  liable  for  failure  to  per- 
form his  contract,  the  court  said,  ' '  It  is  settled  law  that, 
where  an  article  or  commodity  is  to  be  made  or  supplied 
to  a  purchaser  for  a  particular  purpose  known  to  the 
seller,  there  is  an  implied  warranty  that  it  shall  be  rea- 
sonably fit  and  suitable  for  the  purpose  intended."®* 

82 — Thus,  the  fact  that  the  chat-  be   capable   of  fertilizing;    Inter- 

tel  is  not  in  the  seller's  possession  state  Grocer  Co.  v.  Bentley,   214 

has  been  held  to  negative  an  im-  Mass.    227,    "sardines"    must    be 

plied  warranty  of  title,  Byrnside  marketable    under    that     general 

V.  Burdett,  15  W.  Va.  702;   Costi-  name. 

gan  V.  Hawkins,  22  Wis.  74;  Budd  As     illustrations:     a     seller    of 

V.  Power  &  Co.,  8  Mont.   380.  food  manufactured  by  himself  im- 

No  warranty  implied  if  circum-  pliedly  warrants  it  fit  to  eat.  Race 

stances  reasonably  negative  it,  Co-  v.  Crum,  22.2  N.  Y.  410,  118  N.  E. 

gar  v.  Bums  Lumber  Co.,  46  W.  Va.  852;  Doyle  v.  Fuerst,  129  La.  838; 

256;     Johnson    v.     Laybourn,     56  Barrington    v.    Hotel    Astor,    171 

Minn.    332,    judicial    sale;    Storm  N.  Y.  S.  840.     One  who  installed 

V.  Smith,  43  Miss.  497;    Scranton  a    wireless    telegraph    apparatus 

V.  Clark,  39  N.  Y.  220.  held  to  have  impliedly  warranted 

83 — 44  Ore.  34.  that    its    use    would   not    infringe 

84 — In  the  sale  of  a  machine  de-  patents,  DeForest  Co.  v.  Standard 
scribed  as  a  "potato  digger"  there  Oil  Co.,  238  Fed.  346;  Implied  war- 
is  an  implied  provision  that  it  is  ranty  that  fruit  trees  sold  by  a 
capable  of  use  for  digging  pota-  nursery  will  grow,  Gresinger  v. 
toes,  Hallock  v.  Cutler,  71  111.  Ap.  Hubbard,  21  Ida.  469;  that  water 
471;  Kennebrew  v.  Southern  etc.  sold  for  mining  purposes  will  be 
Co.,  106  Ala.  377;  Barry  &  Co.  v.  sufliciently  clear  of  sediment  for 
Usry,  70  Ga.  711,  "fertilizer"  must  use,    Gold    Ridge    Mining    Co.    v. 


THE  BUYER'S  RIGHTS  191 

But  no  such  representation  will  be  implied,  of  course, 
if  the  circumstances  are  not  such  as  to  justify  it.  If  the 
seller  does  not  know  of  the  purpose  for  which  the  thing 
described  is  to  be  used,  no  requisite  of  fitness  beyond 
what  normally  appertains  to  an  article  so  described  will 
be  implied.  To  quote,  as  illustration,  from  Talbot  Paving 
Co.  V.  Gorman,^^  ''The  exact  point  made  by  the  plaintiff 
appears  to  be  that,  inasmuch  as  the  defendant  (the 
seller)  knew  what  the  specifications  were,  the  law  implied 
a  warranty  of  fitness.  A  pertinent  inqiury  is,  *A  fitness 
for  what?'  "Was  it  fitness  for  the  paving  jobs  that  the 
plaintiff  had  on  hand  ?  If  this  be  claimed,  it  is  a  sufficient 
answer  to  say  that  the  evidence  fails  to  disclose  that 
the  defendant  knew  what  jobs  plaintiff  had.  "^^ 

Neither  will  there  be  implied  anything  that  the  seller 
could  not  reasonably  be  supposed  to  have  known  con- 
cerning the  chattel  itself.  He  impliedly  undertakes  to 
furnish  what  is  reasonable  under  the  circumstances, 
which  is  a  chattel,  such  as  described  in  the  contract,  that 
will,  in  addition  to  that  express  description,  suit  the 
buyer's  known  purpose  of  use,  so  far  as  the  seller  ought 
reasonably  to  know  its  characteristics  outside  of  the 
express  description.  But  he  does  not  impliedly  agree 
that,  if  it  conforms  to  the  express  description,  it  shall 
be  free  from  defects  of  which  he  could  not  reasonably 
know.®'* 

Nor  will  the  law  imply  a  representation  that  the 
described  goods  will  be  of  a  quality,  or  of  a  fitness  for 

Tallmadge,  44  Ore.  34;  municipal-  87— Bragg  v.  Morrill,  49  Vt.  45; 

ity  in  furnishing  water  impliedly  Seixas  v.  Woods,   2   Caines  48,   2 

warrants  that  it  is  free  from  dis-  Am.   Dec.   215;    Swett  v.    Colgate, 

ease    germs,    Canavan    v.    City   of  20  Johns.  (N.  Y.)  196,  11  Am.  Dec. 

Mechanicsville,  177  N.  Y.  S.  808;  266;   Ryan  v.  Ulmer  108  Pa.  332, 

reversed,    N.    Y.    1920,    128    N.    E.  56  Am.  Rep.  210;   Julian  v.  Laub- 

885.  enberger,   16    Misc.    (N.   Y.)    646; 

85—103  Mich.  403,  406.  Jones  v.  Just,  L.   R.  3   Q.  B.   197. 

86 — Day   v.    Mapes-Reeve    Cons.  See  authorities  post. 
Co.,  174  Mass.  412. 

*See  Uniform  Sales  Act,  Section  13,  (1),  (2),  (3),  (4),  14,  15,  (1). 
(2),  (3),  (4),  (5),  (6),  16, 


192  THE  LAW  OF  SALES 

particular  purpose,  inconsistent  with  tlie  known,  or  the 
normal,  characteristics  of  goods  conforming  to  the 
express  description.  For  instance,  if  a  buyer  orders  ''a 
driving  belt  with  cemented  laps,  instead  of  riveted  ones, 
to  run  an  elevator  hoist ' '  he  can  not  hold  the  seller  liable 
if  a  belt  with  cemented  laps  is  not  suitable  for  that  pur- 
pose.®^ There  is,  ordinarily,  no  duty  on  the  part  of  the 
seller  to  point  out  inconsistency  between  the  express 
description  and  the  purpose,  and  his  performance  accord- 
ing to  the  description  is  sufficient.  In  Chanter  v.  Hop- 
kins,^^  the  defendant  had  ordered  of  plaintiff  one  of  his 
''patent  furnaces,"  stating  in  the  order  that  it  was  to  be 
used  in  a  certain  way.  Plaintiff's  patent  furnaces  were 
all  of  a  standard  and  all  had  the  same  characteristics. 
The  one  sent,  although  of  this  known  standard,  was  not 
fit  for  the  defendant's  purpose.  It  was  held,  neverthe- 
less, that  the  plaintiff  had  fulfilled  the  agreement.  Lord 
Abinger  said,  "The  question  is,  whether  or  no  the  order 
has  not  been  complied  with  in  its  terms.  What  is  the 
order?  It  is  an  order  for  one  of  those  engines  of  W'hich 
the  plaintiff  was  known  to  be  the  patentee;  he  was  not 
obliged  to  know  the  object  or  use  to  w^hich  the  defendant 
meant  to  apply  it;  and  it  is  admitted  there  is  no  fraud. 
If,  when  the  plaintiff  received  such  an  order,  he  had 
known  it  could  not  be  so  applied,  and  felt  that  the  defend- 
ant was  under  some  misapprehension  on  the  subject,  and 
that  he  was  buying  a  thing  on  the  supposition  that  he 
could  apply  it  to  that  use,  when  the  plaintiff  very  well 
knew  he  could  not,  in  that  case  it  might  affect  the  con- 
tract on  the  ground  of  the  suppression  of  a  material  fact ; 
that  might  be  a  question  for  the  jury.  Or  if  the  terms 
of  the  contract  were  proposed  by  the  plaintiff*  himself, 
such  as,  'I  will  send  you  one  of  my  smoke-consuming  fur- 
naces, which  shall  suit  your  brewery ; '  in  such  case  that 
would  be  a  warranty  that  it  would  suit  a  brewery.    But 

88— Gregg  v.  Page  Belting  Co.,  89—4  M.  &  V/.  399. 

69  N.  H.  247. 


THE  BUYER'S  RIGHTS  193 

in  this  case  no  fraud  whatever  is  suggested;  and  the 
case  is  that  of  an  order  for  the  purchase  of  a  specific 
chattel,  which  the  buyer  himself  describes,  believing, 
indeed,  that  it  will  answer  a  particular  purpose  to  which 
he  means  to  put  it;  but  if  it  does  not,  he  is  not  the  less 
on  that  account  bound  to  pay  for  it."^'' 

This  is  only  one  phase  of  the  general  rule  that  no  rep- 
sentation  of  fact,  and  its  attendant  liability,  will  he  im- 
plied by  the  courts  when  such  an  implication  would  be  in- 
consistent with  the  express  statements,  or  with  the  ex- 
press terms  of  the  contract.  A  fortiori,  if  the  seller 
definitely  states  that  there  is  no  liability  dependent  on  the 
statements  he  makes,  and  that  no  otlier  representations 
are  to  be  implied,  the  courts  will  not  attach  a  hability  to 
such  statements.^^* 

But,  although  the  courts  will  not  unreasonably  imply 
statements  inconsistent  with  the  express  ones,i/  there  are 
in  fact,  or  by  reasonable  implication,  incongruous  state- 
ments, the  courts  may  impose  a  liability  for  the  incorrect 
one.  In  Drummond  v.  Van  Ingen,®^  for  instance,  the  seller 
agreed  to  furnish  goods  exactly  like  a  certain  sample  and 
represented  that  they  would  be  suitable  for  a  certain  pur- 

90— Gregg  v.  Page  Belting  Co.,  v.  Conley,  58  Md.  59. 
69  N.  H.  247;  Titley  v.  Enterprise  But  a  fitness  for  the  purpose 
Stone  Co.,  127  111.  457,  an  agree-  may  be  a  part  of  the  total  de- 
ment for  "rubble  stone  from  sell-  scription  even  though  inconsis- 
er's  quarry"  carries  no  implica-  tent  with  other  parts.  That  is  to 
tion  of  special  characteristics;  say,  the  foregoing  mile  is  not  ab- 
Milwaukee  Boiler  Co.  v.  Duncan,  solutely  correct,  nor  meticulously 
87  Wis.  120;  Wilson  v.  Lawrence,  adhered  to.  See  following  notes 
139  Mass.  318;  Cafre  v.  Lockwood,  for  citations. 

47  N.  Y.  S.  916;  Fairbanks  Morse  91— Hartin  v.  Pelt,  76  Ark.  177; 

Co.    V.    Baskett,    98    Mo.    Ap.    53;  Fauntleroy  v.  Wilcox,  80  lU.  477; 

Warren  Glass  Works  v.  Keystone  Lynch  v.  Curfman,  65  Minn.  170; 

Co.,  65  Md.  547;  Port  Carbon  Iron  Wood   v.   Ross    (Tex.),   26    S.   W. 

Co.  V.  Groves,  68  Pa.  149;  Bounce  148;    M'Lean  v.   Green,  2   McMuI. 

V.   Dow,   64   N.   Y.   412;    Wheaton  (S.   C.)    17;    Burnett   v.    Hensley, 

etc.  Co.  V.  Noye  etc.  Co.,  66  Minn.  118  la.  575. 

156;   Wisconsin  Red  Brick  Co.  v.  92—12  App.  Cas.  284, 
Hood,  67  Minn.  329;   Basin  &  Co. 

*See  Uniform  Sales  Act,  Section  71. 


194  THE  LAW  OF  SALES 

pose.  The  goods  when  furnished  were  in  fact  exactly 
like  the  sample,  but  they  were  not  fit  for  the  purpose. 
The  representation  that  they  would  be  fit  for  the  purpose 
intended  was  necessarily  inconsistent  with  the  promise 
that  they  should  be  exactly  hke  the  sample.  The  court 
held  the  former  representation  to  be  more  important 
than  the  literal  form  of  the  latter  promise  and  imposed 
on  the  seller  a  liability  to  make  good  his  representation 
of  fitness.^*  There  is  no  rule  by  which  it  can  absolutely 
be  determined  how  a  court  will  solve  any  possible  incon- 
sistency of  tljis  kind. 

In  summarization,  then,  the  courts  will  usually  imply 
a  warranty  that  goods  are  fit  for  the  purpose  for  which 
the  buyer  intends  them,  whether  that  purpose  be  re-sale, 
consumption,  or  anything  else.  But  they  will  not  imply 
such  warranty  unless  the  seller  may  reasonably  be  sup- 
posed to  know  that  purpose.  And  they  will  not  imply 
such  a  warranty  if  it  is  expressly  negatived  by  the  seller, 
nor  if  to  do  so  would  be  inconsistent  with  the  other  parts 
of  the  description. 

Neither  will  the  courts  imply  a  warranty  unless  the 
seller  can  reasonably  be  supposed  to  know  more  about 
the  goods  sold  than  the  buyer  does.  A  manufacturer,  for 
instance,  may  know  more  about  the  chattel  sold  than  does 
the  buyer,  but  a  retail  seller  has  not  necessarily  any  more 
exact  knowledge  than  the  buyer.  Hence  a  seller  is  not 
usually  responsible,  hy  mere  implication,  for  hidden 
defects  in  an  article  of  which  he  is  not  the  manufac- 
turer, or  grower,  or  packer,  or  otherwise  so  concerned 
as  reasonably  to  have  opportunity  for  greater  knowledge 
than  the  buyer  has.^* 

93 — Accd.,  West  End   Mfg.   Co.  perienced   butcher,   who   inspects 

V.    Warren    Co.,    198    Mass.    320;  it;     National    Cotton    Oil    Co.    v. 

Lissberger  v.  Kellog,  78  N.  J.  L.  Young,    74    Ark.    144,    cattle    feed 

86.  not  warranted  free  from  accident- 

94 — Zielinski  v.  Potter,  —  Mich.  al  defects;   Lukens  v.  Freund,  27 

— ,  L.  R.  A.  1917  D  822,  no  war-  Kan.  664,  id.;  Cf.  Houk  v.  Berg, 

ranty   of   fitness    implied    in    sale  Tex. — ,  105  S.  W.  1176.    Wisconsin 

of  animal  to  be  slaughtered  to  e"  Brick  Co.  v.  Hood,  67  Minn.  329; 


THE  BUYER'S  RIGHTS  195 

Implied  Warranties  in  Sales  of  Food. — In  case  of  a 

sale  of  food  there  is  a  tendency  to  depart  from  this  logical 
position  that  no  warranty  will  be  imphed  unless  the 
seller  had  more  reason  than  the  buyer  to  know  about  the 
goods.  Thus,  in  Chapman  v.  Roggenkamp^^  the  jjlaintiff 
had  bought  a  can  of  peas  from  the  defendant  and  had  been 
made  violently  sick  from  some  toxin  in  them.  She  sued 
for  damages  on  an  impUed  warranty  that  they  were 
wholesome.  The  defendant  was  only  a  retailer  and  had 
not  himself  packed  the  peas.  He  had  apparently  every 
reason  to  suppose  that  they  were  perfectly  wholesome. 
His  counsel  ''argued  that  where  a  person  purchases  from 
such  a  dealer  articles  of  food  in  cans  for  immediate  con- 
sumption, the  buyer,  from  the  nature  of  the  transaction, 
must  know  that  the  seller  has  no  greater  knowledge  as 
to  the  condition  of  the  articles  than  the  buyer  has,  and, 
hence,  does  not  rely  upon  the  seller's  superior  knowl- 
edge, and  that,  therefore,  there  is  no  implied  warranty 
of  the  wholesomeness  of  said  articles."  Despite  the 
obvious  forcefulness  of  this  argument  the  court  decided 
that  the  defendant  was  liable  on  an  implied  warranty, 
on  the  principle  that  ''public  safety  demands  that,  in  all 
sales  of  provisions  for  domestic  use  by  a  retail  dealer, 
there  should  be  an  implied  warranty."®^ 

There  is  strong  dissent  from  this  imposition  of  arbi- 
trary liability  in  cases  where  the  seller  has  no  more 
opportunity  to  learn  the  truth  than  the  buyer  has.®''' 

Swank  v.  Battaglia,  84  Ore.  159,  L.  however,   is  legally   presumed   to 

R.  A.  1917  F  469,  sale  of  apparent-  know    its   character,    Reynolds   v. 

ly  sound,  but  really  worthless  po-  Gen'l  Elec.  Co.,  141  Fed.  551. 

tatoes  by  one  dealer  to  another;  95 — 182  111.  Ap.  117. 

Thompson  v.  Libby,  35  Minn.  443,  96— Accd.,  Ward  v.  Great  Atlan- 

fitness  for  purpose;  Fairbanks  Co.  tic  &  Pac.  Tea  Co.,  231  Mass.  90, 

V.  Holt,  79  Wash.  361,  140  Pac.  394.  120  N.  E.  225. 

sale  of  second  hand  goods;  White  Such    liability    is    imposed    by 

V.    Oakes,   88   Me.    367,   dealer   in  statute    in    Pennsylvania.      Weiss 

folding   beds   not   liable    for   ten-  v.  Swift  &  Co.,  36  Pa.  Sup.  Ct.  376. 

dency  of  bed  sold  to  close  up  un-  97 —     Julian    v.    Laubenberger, 

expectedly.  16  Misc.  (N.  Y.)  646,  the  doctrine 

The  manufacturer  of  an  article,  of    implied    warranty     "proceeds 


196  THE  LAW  OF  SALES 

But  where  the  food  is  not  in  cans,  or  other-^-ise  con- 
cealed, the  weight  of  authority  makes  a  dealer  liable  on 
implied  warranty  of  wholesomeness,  on  the  ground  that 
as  a  dealer  his  knowledge  of  its  condition  is  superior  to 
that  of  the  buyer.^^  But  even  this  liability  does  not 
extend  to  sellers  who  are  not  regular  dealers  in  the 
particular  type  of  article.®^  Nor  does  it  arise  in  cases 
where  tl;e  buyer  is  fully  as  conversant  with  the  nature 
of  the  article  as  is  the  seller. 

Time  of  Making  the  Warranty. — It  is  not  essential 


to  the  seller 's  liability  that  the  statements  shall  have  been 
immediately  connected  mth  the  other  transactions  of 
the  sale.  It  is  sufficient  if  they  were  intended  to  be  a 
part  of  the  transaction.  Thus  in  one  case^°°  the  defend- 
ant was  accustomed  to  sell  fiberoid  to  the  plaintiff  from 
time  to  time.  In  March  the  plaintiff  complained  that 
the  goods  had  too  great  tendency  to  catch  fire.  The 
defendant  replied  that  in  the  future  it  would  be  all  right. 
The  following  October,  mthout  any  further  representa- 

upon    the    assumption    that    the  Lombard,    18    Pick.    (Mass.)    57; 

vendor  has  some  means  of  knowl-  Bishop  v.  Webber,  139  Mass.  411. 

edge,  opportunities  for  inspection,  In  Farrell  v.  The  Manhattan  Mar- 

or  sources  of  information  with  re-  ket  Co.,   198  Mass.   271,  this  was 

gard  to  the  article  which  are  not  confined  to  articles  selected  from 

accessible  or  are  unknown  to  the  his   general   stock   by   the   dealer 

purchaser."      The    dealer   has   no  himself,    as    distinct    from    those 

better  way  of  knowing  what  is  in  picked     out     by     the     customer; 

the    cans    than    has    the    buyer.  Wiedeman  v.  Keller,  171  111.  93; 

Bigelow  V.  Maine  Cent.  R.  R.,  110  Rinaldi     v.     Mohican     Co.,     157 

Me.  105.  N.  Y.  S.  561,  sale  of  meat  stamped 

98 — "The    early    rules    of    law  wholesome  by  government  inspec- 

•were  formulated  upon  the  theory  tors. 

that  the  provision  dealer  and  the  The  packer  impliedly  warrants 
victualer,  having  an  opportunity  what  he  sells  to  the  dealer,  Copas 
to  observe  and  inspect  the  appear-  v.  Provision  Co.,  73  Mich.  541. 
ance  and  quality  of  the  food  prod-  99 — Giroux  v.  Steadman,  145 
ucts  they  offered  to  the  public,  Mass.  439,  sale  of  hogs  by  a  farm- 
were,    accordingly,    charged   with  er. 

knowledgeof  their  imperfections;"  100 — Leavitt    v.     Fiberoid    Co., 

Bigelow  V.  Maine  Cent.  R.  R.  Co.,  196  Mass.  440. 
110   Me.    105;    citing  Winslow  v. 


THE  BUYER'S  RIGHTS 


197 


tions  in  the  meantime,  the  plaintiff  bought  more  fiberoid 
which  did  catch  fire  too  readily.  He  sued  on  the  express 
warranty  that  it  would  be  all  right.  The  court  sustained 
the  suit,  saying,  ''this  w^as  a  continuing  offer  of  guar- 
antee. *  *  *  It  is  not  necessary  that  the  giving  orf  the 
warranty  should  be  simultaneous  with  the  sale.  It  is 
enough  if  it  is  made  under  such  circumstances  as  to  war- 
rant the  inference  that  it  enters  into  the  contract  as 
finally  made.  ""^ 

Measure  of  Damages. — The  buyer  may  recover 


compensation  for  damage  resulting  from  the  false  state- 
ments, either  by  setting  off  the  amount  against  the  pur- 


101 — Another  court,  Bowen  v. 
Zaccanti,  203  Mo.  208,  208,  S.  W. 
277,  has  gone  so  far  as  to  hold  that 
a  statement  made  after  the  con- 
tract had  been  completely  entered 
into  creates  a  liability  as  a  war- 
ranty, if  it  was  made  before  the 
money  had  been  paid  and  before 
title  had  passed.  In  this  case,  of 
course,  there  could  have  been  no 
"consideration"  for  the  warranty, 
the  contract  having  been  admit- 
tedly complete  before  the  state- 
ment was  made.  Neither  could  it 
well  be  said  that  the  buyer  had 
been  deceived  to  his  damage,  he 
having  already  fully  bound  himself 
to  take  the  goods  and  pay  the 
price  by  a  contract  quite  free  from 
fraud  or  deceit.  The  so-called 
warranty  was  clearly  no  part  of 
the  contract  of  sale.  There  is 
really  no  theory  on  which  this 
particular  decision  can  be  sup- 
ported. The  case  to  which  the 
court  refers  as  original  authority, 
namely  McGaughey  v.  Richardson, 
148  Mass.  60S,  does  not  in  fact 
support  it,  as  the  warranty  therein 
considered  had  been  made  orally 


at  the  time  of  the  contract  of  sale 
and  as  a  part  of  it,  and  merely 
put  into  writing  thereafter. 

To  the  effect  that  if  otherwise 
a  part  of  the  contract  of  sale, 
representations  need  not  be  coin- 
cident with  the  rest  of  the  transac- 
tion, see  Powers  v.  Briggs,  139 
Mich.  664.  In  Way  v.  Martin,  140 
Pa.  499,  it  was  left  to  the  jury  to 
determine  whether  statements 
made  before  the  final  contract  was 
entered  into  v/ere  intended  to  be 
a  part  of  that  contract;  Grossman 
v.  Johnson,  G3  Vt.  333. 

But  compare  Rausberger  v.  Ing, 
55  Mo.  Ap.  621. 

The  statement  must  be  a  part 
of  the  contract  transaction,  Hop- 
kins V.  Tanqueray,  15  Com.  B. 
130.  This  matter  is  confused 
through  failure  to  distinguish 
whether  the  seller  must  have  in- 
tended it  as  a  term  in  the  con- 
tract, which  is  the  basis  of  deci- 
sion in  the  case  cited,  and  in  Zim- 
merman V.  Morrow,  28  Minn.  367, 
or  whether  it  is  sufficient  that  the 
buyer  was  justified  in  supposing 
it  to  have  been  so  intended. 


198  THE  LAW  OF  SALES 

chase  price,  or,  if  he  has  already  paid,  by  a  separate 
action  for  damages.^"* 

The  usual  rules  for  fixing  the  damages  apply  in  this 
case.  The  elements  considered  must  vary  with  the  cir- 
cumstances of  each  case.  But  it  may  be  said  as  a  broad, 
general  rule,  that  the  amount  of  damage  is  the  difference 
between  the  value  of  the  goods  as  they  actually  were 
when  the  breach  was  discovered,  and  the  value  they 
would  have  had  if  the  representations  had  been  true.'^®'* 

This  comparison  of  values  is  not  always  practically 
applied,  and,  even  if  a  comparison  could  be  made,  it  would 
limit  the  damages  recoverable  at  most  to  the  difference 
between  the  proper  goods  and  worthless  goods.  It  would 
not  cover  collateral  damage  at  all.  But,  in  fact,  when 
the  difference  in  values  is  not  a  fair  or  practical  measure 
of  the  damage  it  is  not  the  measure  used.  The  broader 
rule  is,  that  ''upon  any  breach  of  contract,  whether  of 
warranty  or  otherwise,  the  defendant  is  liable  for  what- 
ever damages  follow  as  a  natural  consequence  and  the 
proximate  result  of  his  conduct,  or  which  may  reason- 
ably be  supposed  to  have  been  within  the  contemplation 
of  the  parties  at  the  time  the  contract  was  made  as  a 
probable  result  of  a  breach  of  it. '  '^°* 

102 — But  he  can  not  sue  for  ranty  to  be  the  difference  be- 
damage  before  the  seller  has  tween  the  value  as  it  should  have 
either  passed  the  title  or  broken  been  and  as  it  actually  was  "at  the 
the  contract  of  sale.  Bunday  v.  time  to  which  the  warranty  re- 
Columbus  Machine  Co.,  143  Mich,  ferred."  This  was  interpreted,  in 
10;  Moneyweight  Scale  Co.  v.  Shearer  v.  Park  Nursery  Co.,  103 
David,  180  Mich.  8;  G.  B.  Shearer  Cal.  415,  to  mean  the  time  at 
Co.  V.  Kakoulis,  144  N.  Y.  S.  1077,  which  the  breach  is,  or  should  be, 
a  conditional   buyer   can   not   set  discovered. 

up  breach  of  warranty  in  defense  104 — Leavitt    v.    Fiberoid    Co., 

of   an    action    for  an    installment  196    Mass.    440,   445,   citing  many 

due.     And  see  ante  p.  184.  authorities.       In     Boston     Woven 

103 — Deutsch  v.  Pratt,  149  Mass.  Hose  Co.  v.  Kendall,  178  Mass. 
415;  Scranton  v.  Mechanics  Trad-  232,  the  buyer  was  allowed  to  re- 
ing  Co.,  37  Conn.  130;  Cal.  cover  amounts  which  he  had  been 
Civil  Code,  sec.  3313,  declares  compelled  to  pay  to  his  own  em- 
damages      for     breach     of     war-  ployees    who    had    been    injured 

♦See  Uniform  Sales  Act,  Section  69.  (6),  (7),  70. 


THE  BUYER'S  RIGHTS 


199 


Who  May  Sue. — The  warranty  is  personal  to  the 

buyer.  That  is  to  say,  it  does  not  run  wdth  the  ownership 
of  the  chattel,  and  the  second  buyer  can  not  sue  the 
original  warrantor  for  the  breach. ^°^ 


through  defects  in  the  warranted 
chattel.  In  Weston  v.  B.  &  M. 
R.  R.  Co.,  190  Mass.  298,  the  loss 
of  probable  profits  was  allowed  as 
damage. 

For  breach  of  warranty  of  seeds, 
the  buyer  was  allowed  the  differ- 
ence between  the  value  of  the 
crop  actually  produced  and  the 
value  of  such  a  crop  as  would 
ordinarily  have  been  produced  had 
the  seeds  been  as  warranted,  Ford 
V.  Farmer's  Exch.,  136  Tenn.  287, 
189  S.  W.  368;  Passenger  v.  Thor- 
burn,  35  Barb.  (N.  Y.)  17;  Schutt 
V.  Baker,  9  Hun.  (N.  Y.)  536;  Flick 
V.  Wetherbee,  20  Wis.  392.  Other 
cases  have  allowed  the  cost  of  pre- 
paring the  soil  and  the  loss  of 
use  of  the  land  to  be  added  to  the 
cost  price  of  the  seed  as  damage, 
Reiger  v.  Worth,  127  N.  C.  230; 
Butler  V.  Moore,  68  Ga.  780;  Ferris 
V.  Comstock,  33  Conn.  513; 
Vaughan's  Seed  Store  v.  Stringfel- 
low,  56  Fla.  708;  Phelps  v.  Blyria 
Milling  Co.,  12  Ohio  Dec.  695. 

In  Campbell  Co.  v.  Thorp,  36 
Fed.  414,  it  was  said  that  the 
monetary  difference  between  a 
chattel  warranted  "satisfactory" 
and  one  which  was  "reasonably 
good"  could  not  be  estimated. 

For  breach  of  warranty  of  title, 
the  purchase  price  with  interest 
and  possibly  the  cost  of  attempt- 
ing to  defend  title,  is  allowed. 
Smith  V.  Williams,  117  Ga.  783. 

105— Thisler  v.  Keith,  7  Kan. 
Ap.  363;  Smith  v.  Williams,  117 
Ga.  782;  Nelson  v.  Armour  Pack- 
ing Co.,  76  Ark.  352,  6  Ann.  Cas. 
237;   Tomlinson  v.  Armour  Pack- 


ing Co.,  75  N.  J.  L.  748;  Roberts 
V.  Anheuser  Busch  Assn.,  211 
Mass.  449;  Prater  v.  Campbell, 
110  Ky.  23;  Crigger  v.  Coca  Cola 
Bot.  Wks.,  132  Tenn.  545. 

Nor  can  one  not  in  privity  take 
advantage  of  it,  Gearing  v.  Berk- 
son,  223  Mass.  257. 

There  is  a  growing  tendency  of 
late  to  hold  that  the  warranty 
does  run  with  the  ownership  of 
the  goods  in  cases  of  the  sale  of 
food.  If  the  warrantor's  liability 
were  truly  one  of  contract  these 
decisions  would  be  utterly  illogi- 
cal, but  since  in  reality  the  lia- 
bility has  become  one  imposed  by 
law,  regardless  of  intent,  it  is 
merely  a  question  of  how  far  the 
policy  of  the  courts  will  go.  Held 
that  the  liability  of  the  manufac- 
turer-seller does  run  with  the  own- 
ership, Mazetti  v.  Armour  &  Co., 
75  Wash.  622,  48  L.  R.  A.  (n.  s.) 
213;  Ward  v.  Morehead  City  Sea 
Food  Co.,  171  N.  C.  33;  Catani  v. 
Swift  &  Co.,  251  Pa.  52;  Davis  v. 
Van  Camp  Packing  Co.,  —  la.,  — , 
176  N.  W.  382;  dissenting  opinion 
in  Drury  v.  Armour  &  Co.,  140  Ark. 
371,  216  S.  W.  40;  but  cf.  Wel- 
shausen  v.  Parker  Co.,  83  Conn. 
231,  "There  must  have  been  evi- 
dence of  a  contract  between  the 
parties,  for  without  a  contract 
there  could  be  no  warranty." 

Attention  is  called  to  the  fact 
that  the  judicial  tendency  to  hold 
a  manufacturer  of  food  absolutely 
responsible  for  its  wholesomeness 
is  not  restricted  to  the  theory  of 
implied  warranty,  but  can  also  be 
taken  advantage  of  by  an  action 


200 


THE  LAW  OF  SALES 


in  tort,  for  negligence.  There  is 
marked  tendency  in  such  cases  to 
hold  the  manufacturer  liable  as 
insurer,  on  the  fiction  of  negli- 
gence whether  there  is  any  evi- 
dence of  negligence  in  fact  or  not. 
On  this  theory,  suit  can  be  main- 
tained by  any  one  who  is  injured 
by  the  unwholesome  product.    See 


18  Mich.  Law  Rev.  316;  18  Mich. 
Law  Rev.  436. 

But  even  in  such  cases,  many 
courts  hold  to  the  rule  that  a  third 
person  injured  by  unwholesome 
food  sold  can  not  recover  on  war- 
ranty— as  distinct  from  tort  for 
negligence — unless  the  buyer  was 
the  plaintiff's  agent.  Gearing  v. 
Berkson,  223  Mass.  257. 


CHAPTER  V 

Remedies  and  Rights  of  Third  Persons 

In  discussing  the  rights  of  buyers  and  sellers  we  have 
heretofore  assumed  that  the  seller  was  the  absolute  owner 
of  the  goods  whose  title  he  had  undertaken  to  transfer. 
But  it  occasionally  happens  that  one  sells,  or  attempts 
to  sell,  goods  of  which  he  is  not  o\^^Ier,  or  which  he  other- 
wise has  no  legal  power  to  transfer.  In  such  case  the 
rights  of  his  buyer  may  be  subject  to  those  of  someone 
who  was  not  a  party  to  the  contract  of  sale.  It  is  the 
rights  of  such  persons,  between  whom  there  is  no  contract 
relation,  that  are  now  to  be  discussed. 

1.    Purchasers  from  a  Person  in  Possession,  but  With- 
out Title 

The  foundation  on  which  all  these  rights  are  based  is 
the  general  principle  that,  one  can  not  be  deprived  of 
ownership  without  his  consent.  A  seller,  therefore,  who 
has  no  title  himself  can  not  pass  a  title  to  the  buyer  so 
as  to  affect  the  rights  of  the  real  o^vner — except  as  the 
broad  principle  has  been  modified  in  one  respect  or 
another. 

In  General. — The  commonest  case  in  which  the  ques- 
tion arises,  is  where  one  buys  for  value  from  another  who 
is  in  possession  of  the  goods  and  whom  the  buyer  believes 
in  good  faith  to  be  the  owner,  but  who  in  fact  is  not  the 
owner.  Even  in  such  case,  although  the  seller  may  have 
been  lawfully  in  possession,  though  there  may  have  been 
nothing  peculiar  to  warn  the  buyer  that  he  was  not  o^\Tier, 
and  though  the  buyer  may  have  parted  with  money  which 
he  can  not  practically  recover,  nevertheless  the  buyer's 

201 


202 


THE  LAW  OP  SALES 


rights  in  the  property  are  subordinate  to  those  of  the 
real  owner,  if  the  sale  was  made  without  the  latter 's 
consent.* 

Thus,  as  illustration,  A  employed  B  to  buy  seed  for 
him  and  in  his,  A's,  name  to  lend  it  to  farmers.  B  was 
to  pay  for  the  seed  Avith  A's  money,  and  it  was  definitely 
understood  between  them  that  it  was  to  be  A's  property 
as  purchased.  B,  while  in  possession  of  some  of  this 
seed,  sold  it  to  C.  The  latter  knew  nothing  of  the  agree- 
ment between  A  and  B,  and  honestly  assumed  from  B's 
possession  that  he  was  the  o\\Tier.  A  sued  C  in  trover 
for  the  seed  and  got  judgment,  the  court  holding  that 
B's  mere  possession  of  the  seed  with  A's  consent  was 
not  enough  to  preclude  A  from  setting  up  his  title.^ 

Even  though  the  person  in  possession  has  actual 
authority  to  sell  to  some  particular  person,  it  has  been 


1— Gilman  Oil  Co.  v.  Norton,  89 
111.  434,  citing  other  authority; 
Edwards  v.  Dooley,  120  N.  Y.  540; 
Oliver  Ditson  Co.  v.  Bates,  181 
Mass.  455,  plaintiff,  a  wholesale 
dealer  in  pianos,  leased  an  instru- 
ment to  B,  "a  dealer  in  musical  in- 
struments." B,  while  in  posses- 
sion, sold  to  defendant  who  sup- 
posed him  to  be  owner,  or  at  least 
to  have  the  right  to  sell.  Plain- 
tiff sued  for  conversion  and  it  was 
held  that  the  written  lease  re- 
butted any  pretense  of  agency  on 
B's  part  and  that  the  buyer  was 
not  otherwise  protected.  Milner 
&  K.  Co.  V.  DeLoach  Mill  Co.,  139 
Ala.  645,  101  Am.  St.  63,  purchaser 
at  sheriff's  sale  of  goods  in  judg- 
ment debtor's  possession  not  pro- 
tected; Tobin  V.  Portland  Mills 
Co.,  41  Ore.  269,  owners  in  com- 
mon of  grain  stored  in  warehouse 
allowed  to  recover  from  purchas- 


er from  warehouseman;  Tuttle  v. 
White,  46  Mich.  485;  Ladd  v. 
Brewer,  17  Kan.  204,  buyer  of 
horse  from  one  in  charge  of  liv- 
ery stable  not  protected;  Klein  v. 
Siebold,  89  111.  540,  sale,  while  in 
possession,  by  husband  of  owner; 
Baker 'v.  Taylor,  54  Minn.  71;  Mc- 
Ginley  v.  Betchel,  4  Neb.  Un.,  552, 
95  N.  W.  32;  Staples  v.  Bradbury, 
8  Me.  181,  23  Am.  Dec.  494;  Thach- 
er  V.  Moors,  134  Mass.  156;  Collins 
V.  Ralli,  20  Hun.  (N.  Y.)  246;  Al- 
bany Warehouse  Co.  v.  Fiske  Cot- 
ton Co.,  16  Ala  Ap.  256,  76  So.  988; 
Prentice  v.  Page,  164  Mass.  276; 
Velsian  v.  Lewis,  15  Ore.  539,  3 
Am.  St.  Rep.  184,  citing  much  au- 
thority; A.  F.  T.  Corp.  v.  Pathe 
Exch.,  172  N.  Y.  S.  364,  an  extreme 
case;  Barrow  v.  Brent,  202  Ala. 
650,  81  So.  669;  Yates  v.  Russell, 
20  Ariz.  338,  180  Pac.  910;  O'Neil 
V.  Thompson,  152  Mich.  396. 


*See  Uniform  Sales  Act,  Section  23,  (1),  (2),  76,  "Goods". 


RIGHTS  OF  THIRD  PERSONS  203 

held  that  another  person  who  lends  money  on  his  appar- 
ent ownership  is  not  protected.^ 

Even  the  fact  that  the  person  in  possession  has 
authority  to  find  customers  for  the  goods  does  not  pro- 
tect one  who  buys  from  him,  believing  he  has  power  to 
sell.» 

Not  even  when  the  character  of  the  goods  has  been 
changed  by  the  possessor  can  he  pass  title  to  a  pur- 
chaser, unless,  of  course,  his  change  in  the  goods  has 
been  such  as,  by  rules  of  title,  vests  title  in  himself, 
regardless  of  the  owner's  consent* 

The  so-called  rule,  that  ''where  one  of  two  innocent 
parties  must  suffer  from  the  fraud  of  a  third,  the  loss 
will  fall  on  him  whose  fault  enabled  the  fraud  to  be  com- 
mitted", is  often  invoked  in  these  cases.  But,  as  a  rule 
for  decision,  it  is  meaningless,  since  it  still  leaves  to  be 
decided  the  question  as  to  whose  fault  enabled  the  fraud 
to  be  perpetrated.  Was  it  the  owner's  fault  in  entrust- 
ing the  goods  to  the  one  who  fraudulently  disposed  of 
them?  Or  was  it  the  fault  of  the  buyer  in  purchasing 
from  one  of  whose  title  he  was  not  absolutely  sure? 
In  answering  this,  the  issue  of  title  is  decided  at  once 
without  help  from  the  ' '  rule. ' '  But,  so  far  as  the  ' '  rule ' ' 
is  concerned,  the  cases  say  specifically  that  the  fault  is 
the  buyer's,  and  therefore,  according  to  the  ''rule,"  the 
loss  must  fall  on  him.^ 

2 — Prentice  v.  Page,  164  Mass.  purchase,  from  one  who  has  no 

276.  right  to  sell,  should  be  treated  as 

3 — Levi  V.  Booth,  58  Md.  305,  42  a  wrong  doer;  but  the  explanation 

Am.  Rep.  332,  even  though  the  per-  of  the   principle  lies  in  the  com- 

son  in  possession  was  a  trader  in  mon-law   maxim    caveat    emptor, 

such    goods.      Thacher   v.    Moors,  which  applies   to  the  transfer  of 

134  Mass.  156.  personal  property.     It  is  the  tuy- 

4 — Strubbee  v.  Trustees,  78  Ky.  er's  own  fault,  If  he  is  so  negli- 

481.  gent  as  not  to  ascertain  the  right 

5 — Velsian    v,    Lewis,    15    Ore.  of  the  vendor  to  sell,  and  he  can 

539,  3  Am.  St.  Rep.  184,  "at  first  not  successfully   Invoke  his   hona 

blush,   it  may  seem  strange  that  -ficies  to  protect  himself  from  lia- 

one  who  takes  possession  of  goods  bility  to  the  true  owner,  who  can 

or   chattels   under   a    contract   of  only  be  divested  of  his  rights  or 


204  THE  LAW  OF  SALES 

An  infinitely  more  usable  test,  or  rule,  is  the  one  that 
where  two  persons  have  each  an  equity  in  the  goods — as 
sharply  distinct  from  an  equity  against  some  person — 
that  one  ivill  prevail  who  has  also  the  legal  title.  If  it  be 
assumed  that  one  who  has  been  wrongfully,  e.  g.  fraudu- 
lently, or  by  an  act  of  conversion,  deprived  of  possession 
has  an  equity  in  the  goods,  that  one  who  has  paid  money, 
or  otherwise  acted,  in  reliance  on  the  payee's  possession 
of  goods  has  also  an  equity  in  them  and  that  one  who 
rehed  on  another  person,  but  not  on  his  possession,  has 
not  an  equity  in  the  goods,  it  will  be  found  that  courts  give 
judgment  with  great  consistency  in  favor  of  the  person 
who,  coupled  mth  an  equity,  has  the  legal  title,  general 
or  special.  This  principle  is  not  often  stated,  at  least  in 
this  particular  connection,  but  it  is  undoubtedly  the  most 
positively  applicable  rule. 

\  Of  course,  if  the  true  owner  has  given  the  person  in 
possession  authority  to  sell,  a  sale  by  him,  in  accord 
with  that  authority,  will  vest  the  rights  of  ownership 
in  the  buyer.  This  is  merely  the  estabhshed  principle 
of  agency  applied  to  the  specific  case  of  a  sale.  In  such 
case  the  title  passes  directly  from  the  original  o^\^ler 
and  not  from  the  first  buyer.  It  passes  not  because  the 
seller  had  title,  but  because  he  was  agent  of  the  real 
owner  to  pass  it.^^ 

'  Furthermore,  the  authority  to  sell  need  not  be  ex- 
pressly given — it  may  be  shown  by  the  implication  of  all 
the  circumstances.  The  leading  case  on  this  point  is 
Pickering  v.  Busk.^  The  plaintiff,  who  had  bought  cer- 
tain hemp  through  one  Swallow,  had  the  warehouseman 

title  to  his  property  by  his  own  Brennan,  53  Miss.  596,  "A  buyer 

act,   or  by  the  operation  of  law.  may  trust  to  appearances;   but  if 

Every  person  is  bound  at  his  peril  they  prove  false  and  delusive,  he 

to  ascertain  in  whom  the  real  title  takes  the  risk,  and  must  abide  the 

to  property  is  vested,  and  however  result."     Johnson  v.  Credit  Lyon- 

much  diligence  he  may   exert  to  nais  Co.,  3  C.  P.  Div.  32. 

that  end,   he   must   abide   by   the  5a— Robinson's  Appeal,  63  Conn. 

consequences     of     any     mistake."  290. 

(Author's   italics.)        Ketchura  v.  6—15  East  38. 


RIGHTS  OF  THIRD  PERSONS  205 

who  stored  it  transfer  it  on  his  books  to  the  name  of 
Swallow.  Another  parcel  was  carried  on  the  books  in 
both  of  their  names.  Swallow  afterwards  sold  this  hemp 
to  the  defendants,  who  supposed  him  to  be  the  owner. 
The  court  held  title  to  be  in  the  defendant.  Lord  Jilllen- 
borough  put  it  on  the  ground  that  Swallow  had  an  osten- 
sible authority  to  sell,  but  without  saying  just  what 
demonstrated  that  ostensible  authority.  The  real  basis  of 
the  decision,  however,  is  that  Swallow  had  a  real,  though 
implied  rather  than  express,  authority  to  sell.  Justice 
LeBlanc  said,  "the  mere  possession  of  personal  property 
does  not  convey  a  title  to  dispose  of  it.  *  *  *  Now  for 
what  purpose  could  the  plaintiff  leave  it  in  the  name  of 
Swallow,  but  that  Swallow  might  dispose  of  it  in  his  ordi- 
nary business  as  broker  *  *  *."  And  Justice  Bayley 
said,  "if  a  person  puts  goods  into  the  custody  of  another, 
whose  common  business  it  is  to  sell,  without  limiting  his 
authority  (author's  italics),  he  thereby  confers  an  im- 
plied authority  upon  him  to  sell  them." 

As  we  have  seen,  and  as  Justice  LeBlanc  said,  merely! 
putting  one  in  possession  of  goods  does  not  imply  in  him 
any  authority  to  sell  them.  There  must  be  something! 
more  in  the  facts.  Pickering  v.  Busk  indicates  that! 
putting  them  in  the  possession  of  one  whose  common  busi- 
ness it  is  to  sell  such  goods,  does  create  such  an  impli- 
cation. But  even  in  such  case  there  will  be  no  authority 
imphed,  as  Justice  Bayley  said,  if  other  facts  nega- 
tive it.''  And  the  fact  that  the  person  in  possession  has 
also  some  other  business  than  that  of  selling,  by  virtue 
of  which  the  goods  might  have  been  entrusted  to  him,  is 
enough,  as  the  authorities  cited  above  show,  to  negative 
an  inference  of  agency. 

Just  what  other  combination  of  circumstances  will 
imply,  in  the  person  entrusted  with  possession,  an  agency 

7 — Levi  V.  Booth,   58  Md.   305;  in  selling  automobiles  held  not  to 

Bank  V.Johnson,  104  Wash.  550, 177  give   them   apparent   authority   to 

Pac.  340,  possession  of  automobile  sell, 
by  corporation  engaged  generally 


206  THE  LAW  OF  SALES 

to  sell,  can  be  determined  only  from  particular  prece- 
dents. It  is  a  matter  of  individual  conclusion  in  each 
case  and  can  not  be  deteraiined  by  rule.* 

Pledges. — Even  when  the  person  in  possession  does 
have  authority  to  sell,  express  or  implied  from  the  cir- 
cumstances, it  does  not  follow  that  he  has  also  implied 
authority  to  pledge  the  goods.^* 

When  Seller  Has  a  Right  to  Acquire  Title. — That  the 
innocent  purchaser  will  not  be  protected  against  the  real 
OMTier  is  true  at  Common  Law^°  even  when  the  person  in 
possession  has  a  contractual  right  to  acquire  the  title. 
That  is  to  say,  one  who  has  possession  of  goods  under  a 
"conditional  sale"  contract,  whereby  he  is  to  acquire  title 
upon  performance  of  a  stipulated  condition,  can  not  pass 
a  title,  even  to  a  bona  fide  purchaser  for  value,  before  per- 
formance of  the  condition.^* 

8 — "The  implied  authority  must  Am.  Rep.  382,  person  in  posses- 
arise  from  the  natural  and  obvious  sion  was  a  dealer;  Wright  v.  Solo- 
interpretation  of  facts  according  mon,  19  Cal.  64,  79  Am.  Dec.  196; 
to  the  habits  and  usages  of  busi-  Quinn  v.  Davis,  78  Pa.  15. 
ness."  Saltus  v.  Everett,  20  Wend.  9 — Paterson  v.  Tash,  2  Strange 
(N.  Y.)  267;  Lewenberg  v.  Hayes,  1178;  Commercial  Bank  of  Selma 
91  Me.  104,  94  Am.  St.  Rep.  215;  v.  Hurt,  99  Ala.  130,  12  So.  568; 
Ladd  V.  Brewer,  17  Kan.  204;  Prentice  v.  Page,  164  Mass.  276. 
Calais  Steamboat  Co.  v.  Scudder,  10 — All  of  these  rules  have  been 
2  Black,  (67  U.  S.)  372;  Smith  v.  more  or  less  modified  by  statutes. 
Clews,  105  N.  Y.  283,  acquiescence  But  it  seems  desirable  to  discuss 
in  prior  sales  by  the  one  entrusted  the  Common  Law  as  a  whole, 
with  possession  held  sufficient;  without  interruptive  digressions 
Commercial  Bank  v.  Kortright,  22  concerning  statutory  change,  in 
Wend.  (N.  Y.)  348,  34  Am.  Dec.  order  to  give  a  clear  background 
317;  Cowdry  v.  Vandenburg,  101  against  which  to  observe  the 
U.  S.  572,  indorsing  a  non-negoti-  various  statutes. 
able  instrument  in  blank  held  11 — Lorain  Steel  Co.  v.  Norfolk 
enough;  Winchester  Wagon  R.  R.  Co.,  187  Mass.  500;  Payne  v. 
Works  V.  Carmen,  109  Ind.  31,  58  June,   92    Ind.    252;    Lippincott   v. 

♦This  rule  has  been  changed  by  statute  in  a  number  of  states,  al- 
though not  by  the  Uniform  Sales  Act.  These  provide,  in  general,  that 
if  an  agent  has  been  entrusted  with  goods,  or  dociinients  of  title,  with 
authority  to  sell  them,  a  pledge  by  him  may  also  be  effective.  The 
provisions  vary,  however. 


RIGHTS  OF  THIRD  PERSONS  207 

In  a  few  jurisdictions,  however,  this  does  not  hold  and 
one  in  possession  under  a  contract  oi'  conditional  sale  can 
sell  in  such  a  way  that  his  buyer  will  be  protected  against 
the  original  owner.^^  This  doctrine,  embodied  in  statutes 
in  many  other  states,  may  be  economically  wise,  but  it  is 
inconsistent  with  kindred  rules.  Either  it  is  illogical,  or 
they  are.  When  the  seller  is  in  possession,  his  appear- 
ance of  ownership  is  the  same  whether  he  acquired  that 
possession  by  contract  to  buy,  by  hire,  by  loan,  or  by  theft. 
If  the  buyer  knows  how  his  seller  got  possession,  he  knows 
that  his  seller  has  no  title.  If  the  buyer  does  not  know 
how  his  seller  got  possession,  then  the  manner  of  posses- 
sion can  not  affect  the  seller's  appearance  of  title,  or  right 
to  sell.  The  doctrine  of  these  decisions,  which  protect  the 
innocent  purchaser  when  the  seller  is  in  possession  under 
a  conditional  sale  contract,  can  not  be  estopped,  for  the 
same  reasons  would  apply  to  other  cases  of  possession,  in 
which  the  innocent  buyer  is  not  protected.  The  only  other 
explanation  is  to  say  that  the  "conditional  buyer"  really 
has  title  and  that  what  the  seller  by  conditional  sale  really 
reserves  is  something  less  than  title.  This  finds  express 
support  in  some  cases  which  allow  suit  for  the  purchase 
price  after  the  conditional  seller  has  retaken  possession 
on  account  of  the  buyer's  default.     But  other  cases  are 

Rich,  22  Utah  196;  Albany  Ware-  293;  Studebaker  Bros.  v.  Mau,  13 
house  Co.  V.  Fisk  Cotton  Co.,  16  Wyom.  358;  Freed  Furniture  Co. 
Ala.  Ap.  256,  76  So.  988,  person  in  v.  Sorenson,  28  Utah  419;  Leigh- 
possession  would  ordinarily  have  ton  v.  Stevens,  22  Me.  252,  attach- 
had   title   save  for  statute  which  ing  creditors. 

declared  that  title  should  not  pass  12 — Coors   v.    Reagan,   44    Colo, 

till  payment,  but  buyer  from  him  126;  Lincoln  v.  Guynn,  68  Md.  299, 

was  not  protected;  Riley  v.  Dillon,  6  Am.  St.  Rep.  446;  Mertz  v.  Stew- 

148  Ala.  283,  dictum;  Harkness  v.  art,  211  HI.  Ap.  508,  "possession  of 

Russell,  118  U.  S.  663,  citing  much  personalty  is  prima  facie  evidence 

authority;    Ballard  v.  Burgett,  40  of  ownership."  VanDuzor  v.  Allen, 

N.  Y.  314,  citing  authority  and  set-  90    111.    499;    M.    C.    R.    R.    Co.    v. 

tling  doubt  in  New  York;   Menke  Phillips,  60  111.  191;  Haak  v.  Lind- 

v.  First  Natl.  Bank.,  —  Tex.— ,  206  erman   &   Skeer,   64   Pa.   499;    Cf., 

S.  W.  693;   Ocean  S.  S.  Co.  v.  So.  Chamberlain     v.     Smith,     44     Pa. 

States  Naval   Stores   Co.,   145   Ga.  431;  Wender  Coal  Co.  v.  Louisville 

798;    Palmer   v.   Howard,    72   Cal.  Property  Co.,  137  Ky.  339. 


208  THE  LAW  OF  SALES 

quite  out  of  harmony.  The  real  reason  is  probably  eco- 
nomic. 

"Whatever  interest  in  the  goods  the  seller  does  have, 
however,  will  pass  to  his  buyer  and  such  buyer  stands  in 
his  seller's  place  in  respect  to  trespassers,  or  as  to  the 
right  to  acquire  title  from  the  real  owner.^^ 

But  purely  contractual  rights  do  not  pass  to  the  buyer 
except  by  specific  assignment.^* 

Estoppel. — Although  merely  to  entrust  another  with 
possession  of  property  does  not  give  him  such  appear- 
ance of  ownership  as  reasonably  to  mislead  one  who  buys 
from  him,  and  though  the  real  owaier  is  not  in  such  case 
estopped  from  setting  up  his  title  against  one  who  claims 
to  have  been  misled,  the  owner  may  do  such  other  things 
in  addition  to  giving  possession  as  mil  create  in  the  pos- 
sessor a  legally  sufficient  appearance  of  ownership.  In 
such  case,  the  real  owner,  having  so  acted  as  to  mislead  a 
buyer  from  the  one  in  possession,  will  be  precluded  from 
asserting  his  title  against  that  buyer.  Thus,  in  Leavitt  v. 
Fairbanks,^^  the  real  o^vner  was  held  estopped  to  assert 
his  title  because,  for  many  months  after  he  knew  that  the 
defendant  had  bought  the  goods,  he  sat  quiet  and  made  no 
attempt  to  recover  them.  So,  in  Grace  v.  McKissock,^^ 
the  real  OAvner  lost  his  title  because,  having  been  asked  by 
the  buyer  if  he  had  an  interest  in  the  goods,  he  said 
nothing  about  his  title.  Again,  in  O'Connor  v.  Clark," 
the  real  owTier  of  a  wagon  allowed  the  person  in  posses- 
sion to  paint  his,  the  possessor's,  o^vn  name  on  it  for  the 
very  purpose  of  making  him  appear  to  be  owner.  The 
court  held  the  real  owner  estopped  to  set  up  his  title. ^^ 

13 — Ante,   p.  176.  18 — Johnston  v.  Milwaukee,  etc. 

li— Ante,  p.   199.  ^°'  ^^  ^®^-  ^^^'   ^^^  ^^  ^°  ""^"' 

dorsed  notes,  Subletts  v.  Brewing- 
15—92  Me.  521.  ^.^^^  ^39  j^j^   ^p    410,1228. W.1150: 

16—49  Ala.   163.  Marling  v.  Fitzgerald,  138  Wis.  93, 

17—170  Pa.  318.  120  N.  W.  388. 


RIGHTS  OF  THIRD  PERSONS  209 

Particular  Types  of  Property. — There  is  a  tendency 
to  change  this  strict  rule,  and  to  modify  its  application 
to  certain  types  of  property.  Money,  for  instance,  passes 
from  a  mere  possessor  to  purchaser  in  good  faith  quite 
free  from  any  rights  of  the  original  owner.  This  is 
possibly  on  the  ground  that  money  has  no  ear-marks  of 
identification;  more  probably  for  reasons  of  economic 
policy.  So  also,  those  instruments  which  were  negotiable 
by  the  law-merchant  and  its  supplementary  statutes  now 
pass  from  one  person  to  another,  free  from  the  rights  of 
an  unconsenting  original  owner.  Bonds,  in  the  form  of  an 
unconditional  promise  to  pay  to  bearer,  or  to  the  order 
of  a  named  person,  are  generally  held  to  pass  free  from 
equities  under  these  rules.^^ 

Many  courts  apply  this  exception,  more  or  less  incon- 
sistently, to  other  property  in  the  form  of  written  obli- 
gations. Thus  the  lawful  possession  of  stock  certificates 
has  been  held  to  give  the  possessor  power  to  vest  a  title 
in  a  buyer  without  notice.^"  So  also  power  to  pass  title 
has  been  extended  to  one  intrusted  with  mere  possession 
of  other  instruments.^^ 

But  even  the  exception  in  regard  to  stock-certificates, 
warrants,  and  other  documents  not  covered  by  the  Law 
Merchant,  does  not  apply  to  persons  in  possession  with- 
out the  real  owner's  consent.  They  must  have  been  ** en- 
trusted" with  possession  by  the  owner.  Thus  the  man- 
ager of  a  corporation  who  takes  stock-certificates  from 
its  safe  and  sells  them  without  its  consent,  does  not  vest 

19 — Pratt     V.     Higginson,     230  sell;    Walker   v.    Detroit    Transit 

Mass.  256.  Ry.  Co.,  47  Mich.  338. 

20— Penna.   R.   R.   Co.'s  Appeal,  21— Scollans     v.     Rollins,     179 

86  Pa.  80,  by  Implication  and  die-  Mass.  346,  "non-negotiable"  bond; 

turn;  Russell  v.  Am.  Bell  Tel.  Co..  Delfosse     v.     Metropolitan     Nat'l 

180  Mass.  467,  in  view  of  custom;  Bank,  98  111.  Ap.  123,  city  warrant 

Burton's  Appeal,  93  Pa.  214;   Mc-  for    payment;    Brown    v.    Perera, 

Neil  V.  Tenth  National   Bank,  46  ^q  n.  Y.  S.  215,  paper  money  ol 

N.    Y.    325,   but   only   because   in-  foreign  countries. 
dorsed  in  blank  with  a  power  to 


210  THE  LAW  OF  SALES 

a  title  in  the  buyer,  because  he  was  not  entrusted  with 
possession  by  the  company." 

Bills  of  Lading. — As  to  whether  one  in  lawful  posses- 
sion of  a  bill  of  lading  or  a  warehouse  receipt,  properly 
indorsed,  can  give  a  bona  fide  purchaser  the  title  which 
he  himself  has  not,  there  is  much  confusion.  Writers 
generally  indicate  that  mere  possession  of  an  indorsed 
bill  of  lading  is  such  evidence  of  title  as  will  estop  the 
one  who  has  created  that  appearance  from  setting  up 
his  own  title.  The  actual  authority,  however,  is  scant 
and  uncertain.  In  National  Bank  v.  Baltimore  &  Ohio 
R.  R.  Co.,^^  for  instance,  A  sold  lumber  to  B  and  put 
him  in  possession,  but  with  a  reservation  of  title  in  A 
till  payment.  B  then  delivered  the  lumber  to  a  carrier 
and  got  a  bill  of  lading.  This  bill  he  sold  to  C,  who 
bought  in  good  faith.  The  court  held  that  C  acquired 
title  even  against  A.  Superficially  this  case  indicates 
that  the  possessor  of  a  bill  of  lading  can  pass  a  title 
although  he  himself  has  none.  But,  in  fact,  Maryland 
is  one  of  the  few  jurisdictions  in  which  one  in  possession 
of  goods  themselves,  under  a  conditional  sale  contract, 
can  vest  his  buyer  with  title.  So  the  case  means  nothing 
as  to  the  effect  of  possession  of  a  bill  of  lading  com- 
pared with  possession  of  the  goods  themselves.  Again, 
in  Munroe  v.  Phila.  Warehouse  Co.,^*  the  purchaser  of 
a  bill  of  lading  from  one  in  mere  lawful  possession  of 
it  was  protected.  But  it  is  not  improbable  that  a  state 
statute  declaring  bills  of  lading  to  be  "negotiable"  had 

22 — Knox    V.    Eden    Music    Co.,  of  a  properly  indorsed  certificate 

148  N.  Y.  441;  Scollans  v.  Rollins,  of  stock  by  any  one  in  possession 

179  Mass.  346,  dissenting  opinion;  will  vest  title  in  a  bona  fide  pur- 

Belknap   v.    Nat'l   Bk.,   100    Mass.  chaser. 
376,  by  analogy.  23—99  Md.  61.  105  Am.  St.  321. 

This  has  been  changed  by  stat-  24—75   Fed.   545,  aff'd.,   79  Fed. 

ute  In  some  states,  so  that  the  sale  999. 


RIGHTS  OF  TPTIRD  PERSONS 


211 


something  to  do  with  the  fact  that  it  went  ''free  from 
equities. '"^^ 

On  the  other  hand,  there  is  some  precise  authority 
to  the  effect  that  (the  buyer  of  a  bill  of  lading  in  posses- 
sion of  the  seller  is  no  better  off  than  he  would  have  been 
had  the  seller  merely  possessed  the  goods  themselves.^^*) 

Furthermore,  whatever  may  be  the  rule  in  cases  where 
the  possessor  of  the  bill  of  lading  has  been  entrusted 
therewith  by  the  owner,  (the  rule  is  clear  that  possession 
of  a  bill  of  lading  not  entrusted  to  the  possessor  by  the 
owner  does  not  enable  the  possessor  to  invest  its  buyer 
with  any  rights  superior  to  those  of  the  real  owner.J 
This  is  true  even  though  the  owner  had  entrusted  posses- 


25— Cf.  Miller  v.  Browarski,  130 
Pa.  372;  In  Commercial  Bank  v. 
Armsby  Co.,  120  Ga.  74,  sometimes 
cited  for  the  proposition  that  pos- 
session of  the  bill  of  lading  is 
sufficient  evidence  of  title  to  estop 
the  one  who  has  entrusted  pos- 
session to  the  defrauder,  there  are 
extraneous  circumstances  indi- 
cating implied  authority  to  sell 
which  were  probably  the  real 
basis  of  the  decision.  In  Pollard 
V.  Reardon,  65  Fed.  848,  the  rule  as 
to  retention  of  possession  by  a 
seller  undoubtedly  had  some  ef- 
fect. Willinghams  Sons  v.  Mc- 
Guffin,  18  Ga.  Ap.  658. 

26 — Stollenwerck  v.  Thacher, 
115  Mass.  224,  "A  bill  of  lading, 
even  when  in  terms  running  to 
order  or  assigns,  is  not  negotiable, 
like  a  bill  of  exchange,  but  a 
symbol   or  representative  of  the 


goods  themselves;  and  the  rights 
arising  out  of  the  transfer  of  a 
bill  of  lading  correspond,  not  to 
those  arising  out  of  the  indorse- 
ment of  a  negotiable  promise  for 
the  payment  of  money,  but  to 
those  arising  out  of  a  delivery  of 
the  property  itself  under  similar 
circumstances.  *  *  *  But  so  long 
as  the  bill  of  lading  remains  in  the 
hands  of  the  original  party,  or  of 
an  agent  intrusted  with  it  for  a 
special  purpose,  and  not  author- 
ized to  sell  or  pledge  the  goods, 
a  person  who  gets  possession  of 
it  without  the  authority  of  the 
owner,  although  with  the  assent 
of  the  agent,  acquires  no  title  as 
against  the  principal."  Baker  Co. 
V.  Brown,  214  Mass.  196;  Burton 
V.  Curyea,  40  111.  320,  89  Am.  Dec. 
350;  Commercial  Bank  v.  Canal 
Bank,  239  U.  S.  520. 


*See  Uniform  Sales  Act,  Section  31,  ff.  See  also  the  related  pro- 
visions of  the  Uniform  Bills  of  Lading  Act. 

Various  state  statutes  have  declared  bills  of  lading  to  be  "nego- 
tiable". As  to  their  meaning,  see  Shaw  v.  Railroad,  101  U.  S.  557; 
Tiedman  v.  Knox,  53  Md.  612;  Hardie  v.  Railroad,  118  La.  254. 


212  THE  LAW  OF  SALES 

sion  of  the  goods  to  the  person  who  thereby  was  enabled 
to  get  a  bill  of  lading  for  them.'*' 

3.       PUECHASEES    FEOM    SeLLEE    REMAINING    IN    POSSESSION 

Aftee  Passing  Title 

There  is  a  type  of  case  in  which  one  who  has  posses- 
sion only,  without  either  title  or  authority  to  sell,  can 
invest  another,  who  takes  from  him  in  good  faith,  with 
rights  superior  to  those  of  the  true  owner.  This  is  the 
case  where  a  buyer  has  allowed  his  seller  to  remain  in 
possession  after  title  has  passed  and  an  innocent  third 
person  is  misled  thereby.* 

Fraud  as  a  Reason. — These  cases,  considered  as  a  mat- 
ter of  result  rather  than  of  theory,  are  divided  into  two 
groups.  The  primary  decision  on  this  point  is  Twyne's 
case2^  decided  in  1601.  A  statute  of  13  Elizabeth 
provided,  in  effect,  that  all  grants  intended  to  hinder 
or  defraud  creditors  should  be  void,  in  so  far  as  they 
accomplished  that  result.  In  Twyne's  Case,  the  seller 
had  continued  in  possession  of  the  goods  and  the  court 
considered  this,  along  with  other  matters,  as  evidence  of 
intent  to  defraud.    The  sale  was,  therefore,  set  aside. 

The  first  group  of  cases  is  in  harmony  with  Twyne's 
Case,  although  they  may  go  somewhat  further.  They 
hold  that  retention  of  possession  by  the  seller  is  prima 

27— Decan  V.  Shipper,  35  Pa.  239,  57    Ga.    410;    Commercial    Bk.   v. 

78  Am.  Dec.  334;   Hart  v.  Boston  Hurt,  99  Ala.  130,  12  So.  568;  Seal, 

&  M.  R.  R.  Co.,  72  N.  H.  410,  prop-  Lawson  &  Co.  v.  Zell  &  Sons,  63 

erty  itself  had  been  entrusted  to  Md.    356;    Mechanics    &    Traders 

defrauder;  Merchants  Nat'l  Bk.  v.  Bk.  v.  Farmers  etc.  Bk.,  60  N.  Y. 

Bates.  148  Ala.  279,  property  itself  40;  The  Idaho,  93  U.  S.  575;  Saltua 

had  been  stolen;  Raleigh  &  G.  R.  v.  Everett,  20  Wend.   (N.  Y.)   267, 

R.  Co.  V.  Lowe,  101  Ga.  320,  biU  of  32  Am.  Dec.  541. 

lading    had    been    stolen    by    the         2g 3  Coke  80 

seller;  Tison  &  Gordon  v.  Howard, 

*See  Uniform  Sales  Act,  Section  25. 


RIGHTS  OF  THIRD  PERSONS  213 

facie  evidence  of  fraud  in  the  first  transaction  and,  be- 
cause of  this  fraud,  it  will  be  set  aside  in  favor  of  subse- 
quent bona  fide  buyers  or  attaching  creditors.  This 
prima  facie  inference  of  fraud  is  rebuttable,  however,  by 
proof  that  there  was  in  fact  no  fraud  intended. 

According  to  these  decisions,  "no  transaction  shall  be 
considered  fraudulent,  which  is  not  so  in  point  of  fact. 
*  *  *  Possession  remaining  with  the  vendor,  after  an 
absolute  sale  of  personal  property,  is  a  badge  of  fraud, 
devolves  on  the  party  the  necessity  of  showing  that  the 
transaction  is  honest,  and  that  a  sufficient  considera- 
tion has  been  paid  for  it.  By  so  doing,  the  apparent 
incongruity  of  the  ownership  not  being  with  the  posses- 
sion is  explained;  and  certainly  the  plaintiff  has  no 
claim  on  the  principles  of  justice,  to  have  his  execution 
satisfied  out  of  property  which  does  not  belong  to  the 
defendant  in  execution".^® 

In  the  case  just  quoted  from,  the  court  indicates  that 
mere  payment  of  proper  consideration  and  good  faith  in 
the  transaction  generally,  is  sufficient  to  rebut  the  pre- 
sumption of  fraud  arising  from  the  retention  of  posses- 
sion.^" 

29 — Blocker  v.  Burness,  2  Ala.  cizing  its  adoption  by  the  Supreme 

354.     The  court  eliminates  a  cor-  Court,   in   Hamilton   v.   Russell,   1 

related      but      entirely     different  Cranch    309,    and    discussing    the 

problem  which  has  caused  confu-  original      authorities      generally. 

§ion    in    other    cases    by    saying,  Mayer  v.  Clark,  40  Ala.  259 ;  Hight 

"Should  the  property  be  suffered  v.  Harris,  56  Ark.  98,  delivery  of 

to  remain  so  long,  that  the  pos-  title   and    delivery    of    possession 

sessor  acquired  a  delusive  credit  hopelessly   confused    in   verbiage, 

from  the  apparent  ownership  after  but  although  there  was  in  fact  no 

such    sale,    another    question    de-  delivery    of    possession    and     no 

pending    on    different    principles  sound  reason  for  its  retention  yet 

would  arise,  which  it  is  not  neces-  the    first    buyer    was    protected; 

sary  to  determine  at  this  time."  Burke    v.    Sharp,    88    Ark.    433; 

30— That  retention  of  possession  Fleming  v.  Townseud,  6  Ga.  103, 

creates  only  a  rebuttable  presump-  "the  question  of  fraud  or  not  is 

tion  of  fraud,  see:     Hobbs  v.  Bibb,  submitted    to    the   jury;"    but   cf. 

2    Stew.    (Ala.)    54,   rejecting   the  Beers  v.  Dawson,  8  Ga.  556;  Jones 

"fraud  per  se"  rule  of  Edwards  v.  v.  Newberry,  16  Ga.  Ap.  424,  85  S. 

Harben,  2  Term  R.  587,  and  criti-  E.  617;  Bryant  v.  Kelton.l  Tex.  415, 


214  THE  LAW  OF  SALES 

Policy  as  a  Reason. — The  second  group  comprises  those 
decisions  whicli  hold  that,  where  the  seller  has  retained 
possession,  the  first  sale  will  be  ineffective  against  sub- 
sequent purchasers  and  attaching  creditors,  quite  regard- 
less of  whether  the  first  transaction  was  tainted  with 
fraud  or  not.  The  results  in  this  group  of  cases  are 
essentially  similar,  but  the  different  theories  upon  which 
these  results  are  reached  subdivide  the  group  into  four 
classes. 

One  class  puts  the  result  on  the  theory  that  as  between 
immediate  parties  title  will  pass  without  any  change  of 
possession,  but  that  delivery  of  possession  is  necessary 
to  pass  the  title  as  against  subsequent  purchasers  and 
creditors  who  take  possession.  The  vague  meaning  given 
to  ''title"  in  such  statements  speaks  for  itself.  But  the 
result  is  clear ;  the  first  buyer,  unless  he  takes  possession, 
loses  his  rights  in  respect  to  the  goods  as  against  the 
subsequent  bona  fide  takers,  quite  regardless  of  any  real 
fraudulent  purpose  in  the  first  sale  or  in  the  retention  of 
possession.^^ 

A  second  sub-group  puts  the  loss  of  the  first  buyer's 
rights  upon  the  ground  of  ' '  public  policy. ' '  They  recog- 
nize that,  as  between  the  parties,  title  may  have  passed 
without  delivery  of  possession.^^  But,  frankly  disregard- 
ful  of  the  question  of  fraudulent  intent,  they  set  the  first 
buyer's  title  aside  in  favor  of  the  subsequent  purchasers 
and  creditors  as  a  matter  of  sound  policy.  This  theory 
is,  however,  so  often  undistinguished  from  that  of  the 
third  group  as  to  make  actual  separation  of  the  decisions 
impossible. 

discussing    the    original    author-  quent    purchasers    or    attaching 

Itles;    Hlggins  v.   Spahr,  145  Ind.  creditors,  that  there  should  be  a 

167.  delivery     of     the     property" — the 

31 — Lanfear  v.  Sumner,  17  Mass.  question    of   fraud   or   good    faith 

110;     Dempsey    v.    Gardner,     127  was  not  allowed  to  go  to  the  jury. 

Mass.  381,  "by  the  law  as  estab-  32— Frost    v.    Woodruff,    54    III. 

llshed   In   this   Commonwealth,   it  155;  Corgan  v.  Frew,  39  111.  31. 
was  necessary,  as  against  subse- 


RIGHTS  OF  THIRD  PERSONS  215 

The  theory  of  the  third  class  is  that  fraud  in  the  first 
transaction  is  the  reason  for  setting  it  aside  in  favor  of 
creditors  and  later  buyers.  But  in  order  to  carry  out  a 
general  policy  of  setting  the  first  transaction  aside  re- 
gardless of  the  presence  or  absence  of  actual  fraud,  they 
introduce  a  fiction,  a  pure  pretense.  They  hold  that  the 
retention  of  possession  is  "constructive  fraud,"  or  is 
** conclusive  evidence"  of  fraud.  As  a  consequence  of 
this  pretense,  a  sale  under  which  possession  has  not  been 
delivered  to  the  buyer  is  ''fraudulent  in  law,  as  to  cred- 
itors and  subsequent  purchasers,  notwithstanding  the 
sale  may  have  been  in  good  faith  and  for  an  adequate 
consideration. '  '^^ 

But  even  in  these  states,  where  fraud  is  really  immate- 
rial and  the  retention  of  possession  is  the  true  reason 
for  invalidating  the  first  sale,  the  rule  is  not  applied 
absolutely.  By  the  introduction  of  another  fiction  the 
courts  avoid  it  in  some  cases.  "Where  there  is  in  fact 
no  fraud,  and  the  actual  delivery  of  possession  is  physi- 
cally impracticable,  they  are  apt  to  hold  that  ''where 
an  actual  delivery  by  taking  or  removing  the  property  is 
impracticable,  a  symbolic  deliver}^  will  answer."^*  But 
these  courts  will  not  apply  this  doctrine  of  constructive 
delivery  merely  because  there  was  in  fact  no  fraud; 

33 — O'Leary  v.  Bradford,  39  111.  by    statute,    Brooklyn    Cooperage 

Ap.  182,  dictum;  Corr^an  v.  Frew,  Co.  v.  Cora  etc.  Co.,  137  La.  807; 

39  111.  31;   Huschle  v.  Morris,  131  Bass  v.  Abeles,  143  Mo.  Ap.  274, 

111.  587,  even  though  retention  of  126  S.  W.  1002;  Rankin  v.  Schultz, 

possession    was    specifically    pro-  141  la.  681,  118  N.  W.  383. 
vlded  for  in  the  bill  of  sale;  Bass  34— Lewis  v.  Swift,  54  111.  436; 

V.  Pease,  79  111.  Ap.  308.  Ticknor  v.  McClelland,  84  111.  471; 

Gardiner     v.     McDonough,     147  Thompson  v.  Wilhite,  81  111.  356, 

Cal.     313,     inextricably    confused  constructive   delivery   of  growing 

with     the     doctrine     of     implied  corn  sufficient;  Jewett  v.  Lincoln, 

authority  to  resell;  Daniel  v.  Mor-  14  Me.  116,  31  Am.  Dec.  36.    Hobba 

rison's    Exr.    6    Dana    (Ky.)  182;  v.   Carr,  127  Mass.   532;   W^estem 

Stephens  v.  Gifford,  137  Pa.  219.  Mining  Co.  v.  Quinn,  40  Mont.  156, 

Hamilton  v.  Russell,  1  Cranch  135  Am.  St.  Rep.  612;  Ingalls  v 
309,  fixing  the  rule  for  the  Federal  Hcrrick,  108  Mass.  392;  Cf.,  how- 
Courts,  ever,  Lanfear  v.  Sumner,  17  Mass. 

In  some  states  the  rule  is  fixed  110. 


216  THE  LAW  OF  SALES 

there  must  have  been  some  real  impracticability  in  the 
way  of  actual  dehvery.^^ 

The  fourth  sub-class  of  this  group  sets  the  first  salo 
aside  regardless  of  actual  fraud,  but  evidences  distinct 
uncertainty  as  to  just  why  it  is  so  set  aside. 

Thus  in  Connecticut  it  was  decided  in  Meade  v.  Smith^^ 
that  title  passed  irrespective  of  delivery  of  possession, 
not  only  as  between  the  parties,  but  as  to  third  persons 
as  well.  A  retention  of  possession  by  the  seller,  said 
the  court,  or  a  revesting  of  possession  in  him  after  a 
formal  delivery  to  the  buyer,  "furnishes,  in  all  cases, 
presumptive  evidence  that  the  sale  was  fraudulent,  open 
however  to  explanation."  And  in  this  case  the  court 
held  the  explanation  quite  sufiicient  to  rebut  the  presump- 
tion. But  some  years  later,  in  Hatstat  v.  Blakeslee,^"^ 
it  appeared  that  the  buyer  of  a  wagon,  who  had  taken 
actual  possession,  returned  it  to  the  seller  to  be  painted. 
Creditors  of  the  seller  thereafter  attached  it,  and  the  court 
held  that  the  buyer's  rights  were  lost,  saying,  ''This 
rule  of  law,  that  the  retention  of  possession  of  personal 
property  by  the  vendor  is  conclusive  evidence  of  a  color- 
able sale,  is  a  rule  of  policy,  required  for  the  prevention 
of  fraud,  and  is  to  be  inflexibly  maintained.  "^^ 

Still  later,  the  opinion  in  Huebler  v.  Smith^^  com- 
bined this  conflict  into  one  case.  The  court  quoted  with 
approval  the  statement  in  Hatstat  v.  Blakeslee,  and 
others  to  the  effect  that,  "That  the  retention  of  posses- 
sion of  personal  property  by  the  vendor  after  a  sale 
raises  a  presumption  of  fraud  w^hich  cannot  be  repelled 

35 — Thompson  v.  Wilhite,  81  111.  38— Lucas  v.  Birdsey,  41  Conn. 
356,  transaction  admittedly  with-  357,  "The  policy  of  our  Jaw  for- 
out  fraud,  nevertheless  fact  that  bids  the  retention  by  the  vendor 
buyer  employed  seller  to  feed  the  of  the  possession  of  personal  chat- 
hogs  sold  held  no  evidence  of  tels  after  a  sale,  and,  except  as 
change  of  possession;  Cobb  v.  botw^een  the  parties,  makes  such 
Haskell,  14  Me.  303,  31  Am.  Dec.  retention  very  strong,  if  not  in- 
56.  deed  conclusive  evidence  of  a 
36 — IG  Conn.  346.  colorable  sale."  (dictum.) 
37—41  Conn.  302.  39—62  Conn.   186. 


RIGHTS  OF  THIRD  PERSONS  217 

by  any  evidence  that  the  transaction  was  bona  fide  and 
for  valuable  consideration,  is  still  adhered  to  and  en- 
forced by  the  courts  of  this  state  with  undiminished 
rigor,  as  a  most  important  rule  of  public  policy.  *  *  • 
The  reason  of  extending  it  from  a  mere  rule  of  evid'ence, 
calling  it  a  badge  of  fraud  only,  and  arbitrarily  declar- 
ing, as  a  matter  of  law,  that  it  renders  the  sale  void  as 
to  creditors,  notwithstanding  the  highest  evidence  as  to 
the  honesty  of  the  sale,  is  because  it  has  been  thought 
better  to  take  away  the  temptation  to  practice  fraud  than 
to  incur  the  danger  arising  from  the  facility  with  which 
testimony  may  be  manufactured  to  show  that  a  sale  was 
honest."  Despite  this  strong  statement,  however,  the 
court  held  that  where  the  sale  was  a  judicial  one  con- 
ducted by  an  officer  of  the  court  and  there  was  really 
no  fraud,  the  rule  did  not  apply,  although  the  original 
owner  was  left  by  the  buyer  in  continued  possession. 

Probably  the  true  rule  represented  by  this  group  of 
decisions  is  that  stated  in  Osborne  v.  Tuller*°,  that  the 
retention  of  possession  invalidates  the  buyer's  title, 
regardless  of  what  the  jury  may  think  as  to  good  faith, 
but  does  not  invalidate  it  if  the  court  is  convinced  that 
there  was  some  sound  reason  for  the  retention,  such  as 
impracticability  of  actual  change.  In  these  cases  it  is 
not  mere  absence  of  actual  fraud  which  will  protect  the 
buyer,  but  some  positive  justification  for  the  retention 
of  possession  is  required.'*^ 

40—14  Conn.  529.  er.  29  N.  J.  L.  250,  overruling  the 
41 — Gibson  v.  Love,  4  Fla.  217,  statement  as  to  the  conclusive 
the  possession  indicates  fraud  un-  presumption  in  Chumar  v.  Wood, 
less  explained,  "as  for  instance.  6  N.  J.  L.  155;  Nelson  v.  Good,  20 
that  the  sickness  of  the  slave  S.  C.  223;  but  cf.  Pringle  v. 
Henry  made  his  delivery  impos-  Rhame,  10  Rich.  L.  (S.  C.)  72, 
sible;"  Volusia  County  Bk.  v.  Ber-  where  actual  fraud  or  not  was  said 
tola,  44  Fla.  734;  Gardiner  Bk.  v.  to  be  for  jury;  Preguali  v.  Miller, 
Hodgdon,  14  Me.  453;  Coburn  v.  21S.  C.  385;  Sturdevant  v  Ballard. 
Pickering,  3  N,  H.  415;  McDon-  9  Johns.  (N.  Y)  337:  Dickman  v. 
ough  V.  Prescott,  62  N.  H.  600,  Cook,  17  Johns.  (N.  Y.)  332;  Clay- 
Chamberlain  Co.  V.  Tuttle,  75  .K  ton  v.  Anthony,  6  Rand.  (Va.) 
H   171,  71  Atl.  865;  Miller  v.  Shrev-  285;  Davis  v.  Turner,  4  Grat.  (Va.) 


218 


THE  LAW  OF  SALES 


The  whole  matter  is  further  complicated  by  the  asser- 
tion or  denial  of  many  courts,  no  matter  in  what  group 
their  actual  decisions  belong,  that  if  the  retention  of 
possession  is  provided  for  specifically  by  the  bill  of  sale, 
it  is  not  fraudulent.*^ 

The  effect  of  retention,  whatever  it  be  in  the  differ- 
ent jurisdictions,  runs  not  only  in  favor  of  subsequent 
purchasers,  but  of  attaching  creditors  as  well.  It  is  not 
even  essential  that  the  creditor  shall  have  been  actually 
misled  by  the  seller's  retention,  for  the  legal  effect  of 
retention  relates  to  prior  creditors  as  well  as  to  those 
subsequent  to  the  first  sale.'*^*  But  one  who  became  a 
creditor  subsequent  to  the  sale,  with  actual  knowledge  of 
the  sale,  can  not  have  it  avoided  in  his  favor.** 

What  Constitutes  Possession. — In  none  of  these  cases 
is  change  of  position  considered  as  necessary  to  actual 
change  of  possession.*^ 


423,  overruling  the  earlier  rule  of 
conclusive  presumption;  Cf.,  Curd 
V.  Miller,  7  Gratt.  (Va.)  185. 
Poling  V,  Flanagan,  41  W.  Va.  191; 
Blocker  v.  Burners,  2  Ala.  354,  dis- 
senting opinion;  Cocke  v.  Chap- 
man, 7  Ark.  197;  Field  v.  Simea, 
7  Ark.  269. 

42 — Hamilton  v.  Russell,  1 
Cranch  309;  Holliday  v.  McKinnie, 
22  Fla.  153;  Bass  v.  Pease,  79  III. 
Ap.  308;  Cf.  Huschle  v.  Morris,  131 
III.  587;  Osborne  v.  Tuller,  14 
Conn.  529,  explaining  that  It 
means  "legally"  consistent  with 
the  deed. 

43— Gibson  v.  Love,  4  Fla.  217, 
surety  on  seller's  bond  protected; 
Johnson  v.  Holloway,  82  111.  334, 
prior  creditors;  Fleming  v.  Town- 
send,  6  Ga.  103,  subsequent  credi- 
tors; Streeper  v.  Eckart,  2  Whar- 
ton 302,  30  Am.  Dec.  258;   Ander- 


son V.  Anderson,  64  Ala.  403, 
whether  claim  is  contingent  or 
absolute;  Bongard  v.  Block,  81  111. 
186,  id.;  Reade  v.  Livingston,  3 
Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec. 
520;  cf.  Seward  v.  Jackson,  8  Cow. 
(N.  y.)   406. 

44 — Kane  v.  Roberts,  40  Md. 
590,  constructive  notice;  Sledge 
v.  Oberehain,  58  Miss.  670,  id.; 
Lehmberg  v.  Biberstein,  51  Tex. 
457. 

45— Finer  v.  Cover,  55  111.  391; 
Jewett  V.  Lincoln,  14  Me.  116,  31 
Am.  Dec.  36;  Bass  v.  Pease,  79 
111.  Ap.  308;  Cf.,  as  to  what  con- 
stitutes change  of  possession, 
nooley  V.  Pease,  180  U.  S.  126; 
Stephens  v.  Gifford,  137  Pa.  219. 

Delivery  to  carrier,  consigned 
to  buyer.  Is  sufficient,  Gary  v. 
Williams,  47  Colo.  256, 107  Pac.  219. 


♦See  Uniform  Sales  Act,  Section  26. 


RIGHTS  OF  THIRD  PERSONS  219 

Bills  of  lading  and  other  documents  whicli  evidence  a 
carrier's  or  warehouseman's  possession  of  property  and 
which  must  be  surrendered  to  the  carrier  or  warehouse- 
man in  order  to  secure  possession  of  the  property  are 
sometimes  treated  for  purposes  of  title  as  though  they 
were  the  goods  themselves.  Possession  of  such  documents 
is  theoretically  the  possession  of  the  goods.  Hence  a 
transfer  of  possession  of  such  a  bill  of  lading  or  ware- 
house receipt  is  theoretically  transfer  of  possession  of  the 
goods.  Even  in  states  absolutely  requiring  transfer  of 
possession  to  perfect  a  buyer's  title  as  against  subse- 
quent purchasers  from  the  seller,  it  is  possible  that  the 
transfer  of  a  bill  of  lading  representing  the  property 
would  be  sufficient.*^  There  is,  however,  an  obvious  un- 
reality in  pretending  that  possession  of  the  bill  of  lading 
is  possession  of  the  goods.  Like  all  pretenses  it  is  potent 
for  trouble.  When  one  bill  of  lading  is  the  only  key  by 
which  actual  possession  may  be  had,  it  is  justifiable  to  give 
its  possession  the  effect  of  possession  of  the  goods.  But 
when  it  is  not  the  only  key,  such  a  holding  defies  all  the 
reasons  on  w^iich  the  setting  aside  of  the  first  buyer's  title 
is  based. 

4.     Purchasers  from  One  Who  has  Title,  but  not 
Possession 

Subject  to  Original  Owner's  Rights. — A  seller  who  does 
not  have  possession,  but  does  have  title,  can  invest  his 

46 — The  leading  case  is  Barber  from  the  carrier  Myerstein  then 
M.  Myerstein,  L.  R.  4  H.  of  L.  317,  brought  suit  as  owner  of  the 
In  which  one  Abraham,  the  owner  goods,  and  the  court  upheld  his 
of  property  represented  by  a  bill  claim,  saying,  "When  the  vessel 
of  lading  in  triplicate,  pledged  the  is  at  sea  and  the  cargo  has  not 
property  to  Myerstein  and  gave  yet  arrived  the  parting  with  the 
him  possession  of  two  copies  of  bill  of  lading  is  parting  with  that 
the  bill  of  lading.  Later  on  Abra-  which  is  the  symbol  of  property, 
ham  pledged  the  same  goods  to  and  which  for  the  purpose  of  con- 
Barber  and  gave  him  possession  veying  a  right  and  Interest  In  the 
of  the  third  copy  of  the  bill  of  property,  is  the  property  itself." 
lading.  Barber  used  his  copy  first,  Accord,  Broadwell  v.  Howard,  77 
and  got  possession   of  the  goods  111.  305. 


220  THE  LAW  OF  SALES 

buyer  with  what  he  has,  namely,  title.  But  he  can  not 
by  the  sale  cut  off  the  rights  of  the  original  owner.  These 
rights  of  the  original  seller  are,  as  we  have  seen,  only 
the  right  of  a  seller's  lien  and  its  extension  by  way  of 
stoppage  m  transitu.  So  long  as  the  seller  retains 
possession,  in  the  absence  of  credit  to  the  buyer  he 
has  a  lien  upon  the  goods  themselves  for  payment.*'' 
This  right  exists  even  though  the  title  itself  has 
passed  to  a  third  person  who  paid  for  it  in  ignorance  of 
any  outstanding  rights.  The  second  seller's  lack  of  pos- 
session is  sufficient  to  put  a  purchaser  from  him  on  notice 
of  such  rights.*^  But  the  sub-purchaser  having  acquired 
such  rights  as  his  seller  did  have,  has  a  right  to  acquire 
possession  by  tendering  payment  before  the  lien  has  been 
enforced.*^ 

Likewise,  a  seller's  right  to  stop  in  transitu  upon  dis- 
covery of  his  buyer's  insolvency  is  not  lost  through  that 
buyer's  having  resold  even  to  a  purchaser  in  good  faith 
— unless  the  latter  buys  on  the  strength  of  a  bill  of 
lading.^" 

47 — Ante,  p.  111.  Ga.  70,  79  Am.  St.  26,  even  though 

48 — Perrine  v.  Barnard,  142  Ind.  an  unindorsed  bill  of  lading  was 

448;     McElwee     v.     Metropolitan  given  to  the   sub-buyer;    Pattisou 

Lumber  Co.,   69  Fed.   302;    Robin-  v.  Crilton,  33  Ind.  240,  5  Am.  Rep. 

son  V.  Morgan,  65  Vt.  37;   Tuthill  199,  making  an  express  distinction 

V.     Skidmore,     124     N.     Y.     148;  between  the  resale  without  trans- 

M'Ewan  v.  Smith,  2  H.  L.  Cas.  309.  fer  of  a  bill  of  lading  and  one  ac- 

49 — Pardee  v.  Kanady,  100  N.  Y.  companied  by  such  transfer;  Ilsley 

121;  New  England  Iron  Co.  v.  Gil-  v.  Stubbs,  9  Mass.  65,  6  Am.  Dec. 

bert    etc.    Co.,    91    N.    Y.    153,    by  29;    Sheppard  v.  Newhall,  54  Fed. 

analogy.  306,  unaffected  by  delivery  of  unin- 

50 — Kemp  v.  Falk,  L.  R.  7  App.  dorsed  bill  of  lading;   Holbrook  v. 

Cas.    573,    cited    in    McElwee    v.  Vose,  19  N.  Y.  Superior  76;  Delta 

Metropolitan  Lumber  Co.,  69  Fed.  Bag  Co.  v.  Kearns,  112  111.  Ap.  269; 

302;    Pattison   v.    Culton,   33    Ind.  Clapp   Bros.   v.    Sohmer,    55   Iowa 

240,  5  Am.  Rep.  199,  but  here,  al-  273;  Ocean  S.  S.  Co.  v.  Ehrlich,  88 

though  the  court  talks  of  stoppage  Ga.    502,    30    Am.    St.    164,    even 

in  transitu,  the  title  was  in  fact  though    the    bill    of    lading    was 

still    in    the    seller    and    he    was  shown,   but   not  delivered,  to   the 

merely    retaking   his    own    goods;  sub-buyer,     the     freight     receipts 

Eaton  V.  Cook,  32  Vt.  58,  dictum;  given  him  and  he  received  a  part 

Brenan  v.  Atlanta  etc.  R.  R.,  108  of    the    goods    from    the    carrier; 


RIGHTS  OF  THIRD  PERSONS  221 

Purchase  of  Bill  of  Lading. — The  seller's  right  to  stop 
is  defeated,  however,  if  he  has  put  his  buyer  in  possession 
of  a  properly  indorsed  bill  of  lading  which  the  latter 
transfers  to  his  own  buyer.*  This  was  decided  in  the  case 
of  Lickbarrow  v.  Mason.^^  It  appeared  that  the  buy^r  had 
pledged  the  goods  and  delivered  the  bill  of  lading  to  Lick- 
barrow. But  the  seller,  having  discovered  that  the  buyer 
was  bankrupt,  retook  possession  of  the  goods  from  the  car- 
rier. Lickbarrow  then  sued  in  trover.  The  intermediate 
appellate  court  decided  that  title  had  never  passed  to  the 
buyer  and  that  Lickbarrow  therefore  got  no  title.  The 
House  of  Lords,  however,  held  that  title  had  passed  to  the 
buyer.  The  seller's  only  right  against  the  goods,  therefore, 
was  the  right  to  stop  in  transitu.  But  by  the  buyer's 
pledge  to  Lickbarrow  his  title  passed  to  the  latter.  The 
question  was  thus  squarely  presented,  whether  Lickbar- 
row's  title  was  subject  to  the  original  seller's  right  to  stop 
in  transitu.  The  House  of  Lords  held  that  it  was  not  so 
subject.  This  decision  it  put  clearly  on  the  ground  that 
the  right  to  stop  in  transitu  is  an  equity  and  will  prevail 
against  a  bare  legal  title,  but  it  will  not  prevail  against 
one  who,  having  bought  for  a  fair  consideration,  has  him- 
self an  equity  coupled  with  his  legal  title. 

This  equity  in  the  sub-buyer  was  said  to  arise  from 
his  having  purchased  the  goods  for  good  consideration 
and  without  notice.  The  sub-seller's  possession  of  a  bill 
of  lading  was  not  mentioned  as  having  anything  spe- 
cifically to  do  with  the  matter  of  the  sub-purchaser's 
equity,  although  it  was  discussed  in  relation  to  the  trans- 
fer of  title.  From  the  case  itself  it  might  be  concluded 
that  a  sub-buyer  for  value  and  without  notice  from 
one  not  having  a  bill  of  lading  would  be  treated  as  having 
an  ''equity"  connected  with  his  title  and  therefore  to  be 

Gass  V.  Astoria  Veneer  Mills,  118  51 — 6    East    20,    note.    2    Term. 

N.   Y.   S.   982,   even   though   "non-  Rep.  63. 
negotiable"  bill  was  delivered. 

*See  Uniform  Sales  Act,  Section  62. 


222  THE  LAW  OF  SALES 

protected.  But  while  the  precise  statement  on  the  matter 
is  somewhat  scant,  the  authorities  cited  in  the  preceding 
discussion  clearly  limit  the  seller's  loss  of  his  right  to 
cases  where  the  sub-buyer  has  relied  on  the  first  buy- 
er's possession  of  a  bill  of  lading.^^ 

It  is  still  indeterminate  what  is  the  effect  of  a  transfer 
of  a  bill  of  lading  after  the  seller  has  notified  the  carrier 
of  his  stoppage  in  transitu.  One  phase  of  the  matter  was 
decided  in  Newhall  v.  Central  Pacific  Er.  Co.^^  Two  hours 
after  the  seller  had  notified  the  carrier  not  to  deliver  the 
goods,  the  buyer  pledged  the  bill  of  lading  to  the  plaintiff. 
The  latter  presented  the  bill  to  the  carrier  and  demanded 
the  goods;  the  carrier  refused  because  of  the  seller's 
orders  to  stop,  and  suit  was  brought  against  the  carrier. 
Judgment  was  given  for  the  plaintiff.  Delivery  of  the  bill 
of  lading,  said  the  court,  had  passed  the  title  to  him,  and 
in  relying  on  his  seller's  possession  of  the  bill  of  lading 
he  acquired  quite  as  strong  an  equity  in  the  goods  as 
though  the  orders  to  stop  had  not  been  given.  Hence, 
having  both  title  and  an  equity,  his  right  to  the  goods  was 
superior  to  that  flowing  from  the  seller's  bare  equity. 
This,  however,  appears  to  be  the  first  decision  precisely 

52 — That  re-sale  with  transfer  of  Nat'l  Bk.  v.  Schmidt,  6  Colo.  Ap. 
the  indorsed  bill  of  lading  defeats  216,  right  is  lost  by  transfer  as 
stoppage  in  transitu,  see:  Chand-  security  for  antecedent  debt,  cit- 
ler  V.  Fulton,  10  Tex.  2,  60  Am.  ing  authority;  Shepard  v.  Bur- 
Dec.  188,  making  an  express  dls-  rows,  62  N.  J.  L.  469,  mere  knowl- 
tinction  between  the  case  and  one  edge  that  goods  are  not  paid  for 
where  there  was  no  transfer  of  does  not  affect  sub-purchaser's 
bill  of  lading;  this  case  holds  also  position;  Audenreid  v.  Randall,  3 
that  knowledge  that  goods  had  not  Cliff.  99,  Fed.  Cas.  S644.  But  see, 
been  paid  for  would  not  affect  sub-  contra,  Castanola  v.  Mo.  Pac.  R.  R. 
purchaser's  rights,  but  his  knowl-  Co.,  24  Fed.  267;  Lee  v.  Kimball, 
edge  of  his  seller's  insolvency  45  Me.  172,  even  though  considera- 
would  do  so.  Missouri  Pac.  R.  R.  tion  was  payment  of  antecedent 
V.  Heidenheimer,  82  Tex.  105,  27  debt;  Dymock  v.  Midland  Nat'l 
Am.  St.  861,  even  though  the  bill  Bank,  67  Mo.  Ap.  97,  seller's  right 
was  stamped  "duplicate."  St.  not  lost  by  transfer  of  bill  of  lad- 
Paul  Roller  Mill  Co.  v.  Great  Ing  as  security  for  an  antecedent 
Western  Co..  27  Fed.  434,  as  collat-  debt, 
eral  security  for  antecedent  debt.  53—51  Cal.  345,  21  Am.  Rep.  713. 


RIGHTS  OF  THIRD  PERSONS  223 

involving  the  point,  aiid  was  so  stated  by  the  court.  It  is 
also,  so  far  as  the  author  has  discovered,  the  only  de- 
cision involving  the  particular  question.^** 

Assuming  that  the  decision  in  the  Newhall  case  will 
stand,  there  is  left  undecided  the  possible  case  of  s'ale  of 
the  bill  of  lading  after  the  seller  had  not  onlj^  ordered  the 
goods  stopped  in  transitu,  but  had  also,  with  a  '' dupli- 
cate" bill  of  lading,  or  without  any,  secured  possession  of 
the  goods.  The  obvious  difficulty  in  answering  this  ques- 
tion is  due  to  the  fact  that  the  whole  doctrine  growing  out 
of  Lickbarrow  v.  Mason  is  illogical.  That  opinion  de- 
clared that  the  sub-buyer  had  an  ecjuity  in  the  goods.  But 
the  sub-buyer  did  not  rely  on  his' seller 's  possession  of  the 
goods.  Therefore,  if  he  had  an  equity,  every  sub-buyer 
who  relies  on  his  seller's  word  should  also  have  an  equity. 
Possession  of  the  bill  of  lading  is  no  more  indicative  of 
a  title  free  from  someone's  else  right  of  stoppage  in  tran- 
situ than  is  no  possession.  In  fact,  it  shows  that  the  goods 
are  still  in  transit  and  therefore  subject  to  stoppage.  So 
far  as  Lickbarrow  v.  Mason  is  concerned,  every  sub- 
buyer,  whether  of  a  bill  of  lading  or  not,  ivould  be  pro- 
tected. But,  in  other  cases,  sub-buyers  who  have  not  re- 
lied on  a  bill  of  lading  are  not  protected.  The  bill  of  lad- 
ing has  therefore  been  given  an  illogical  value  as  denoting 
a  free  title.  The  result  is  difficulty  where  the  logical  and 
the  illogical  meet. 

Pledgees. — Even  the  delivery  of  a  bill  of  lading  defeats 
the  original  seller's  right  of  stoppage  only  to  the  extent 
of  the  legal  interest  created  in  the  third  person.  If  the 
latter  is  a  sub-buyer,  so  that  he  gets  complete  o^^^lership, 
the  original  seller's  right  is  lost  entirely,  no  matter  what 

54— In  Poole  V.  H.  &  T.  C.  Ry.  that  the  rights  of  a  taker  in  good 

Co ,  58  Tex.  134,  there  was  a  trans-  faith  were  not  involved.     In  Bank 

fer    of    the    bill    of    lading    after  v.  Ry  Co.,  69  Mo.  Ap.  246,  there  is 

notice  to  stop  had  been  given,  but  a   casual   dictum   in   accord   with 

the  taker  accepted  it  with  intent  Newhall  v.  Central  Pacific  R.  R. 
to  defeat  a  probable  stoppage,  so 

*See  Uniform  Sales  Act,  Section  62. 


224  THE  LAW  OF  SALES 

amount  the  sub-buyer  actually  paid — provided,  of  course, 
it  was  not  so  little  as  to  derogate  his  good  faith.  But  if 
the  third  person  is  not  a  buyer,  but  a  pledgee  only,  then 
his  legal  interest  is  to  the  amount  of  his  pledge  only  and 
the  seller's  right  of  stoppage  is  lost  only  to  that  extent. 
The  right  of  stoppage  still  exists  against  whatever  right 
in  the  goods  the  original  buyer  may  still  have.^^ 

There  is  some  question,  however,  whether  the  seller  can 
stop  the  goods  and  thereafter  pay  the  buyer's  pledgee  the 
amount  of  his  interest,  or  must  pay  the  pledgee  before 
he  can  stop  the  goods.  In  Mo.  Pac.  R.  R.  Co.  v.  Heiden- 
heimer,^^  the  carrier  was  sued  by  the  buyer's  pledgee  for 
refusal  to  deliver  the  goods.  The  defense  was,  that,  the 
buyer  having  become  insolvent,  the  seller  had  ordered 
delivery  stopped.  The  court  intimated  that  the  seller 
would  be  protected  as  to  any  surplus  over  the  amount  of 
the  pledge,  but  decided  that,  ''in  any  event,  it  must,  we 
think,  be  conceded  that  if  the  transfer  by  way  of  pledge 
or  mortgage,  or  as  collateral  security  for  a  loan,  does  not 
absolutely  defeat  the  right  of  'stoppage  in  transitu,'  the 
seller  can  not  exert  that  right  until  he  has  discharged  the 
debt  secured  by  the  transfer,  as  his  right  is  subject  to 
that  of  the  mortgage  or  pledgee."  Consequently,  the 
carrier  was  bound  to  deliver  to  the  pledgee  so  long  as  his 
right  was  outstanding.  The  authority  on  the  matter  is 
too  scant  for  it  to  be  determined  definitely  whether  satis- 
faction of  the  pledgee 's  interest  is  a  condition  precedent 
to  the  right  to  stop  or  not. 

55 — Chandler  v.  Fulton,  10  Tex.  I  think  that,  in  equity,  the  trans- 

2,   60   Am.   Dec.   188;    Spalding  v.  fer  took  effect  only  to  the  extent 

Ruding,  6  Beavan  376,  "As  against  of  the  consideration   paid  by  the 

Thomas  (the  buyer),  I  think  that  transferee,    leaving    in    the    plain- 

the  plaintiffs  had  a  right  to  stop  tiffs  an  equitable  Interest  in  the 

the  •  goods    in    transitu;    and,    al-  surplus     value."       Berndtson     v. 

though  the  legal  right  to  the  goods  Strang,  L.  R.  4  Equity  481. 
was      transferred      (to      Thomas'  5g_g2  Tex.  195,  27  Am.  St.  861. 

pledgee)  with  the  bill  of  lading,  yet 


RIGHTS  OF  THIRD  PERSONS  225 

5.     Purchasers  from  One  Who  has  Possession  and  a 
Voidable  Title 

"When  both  title  and  possession  are  in  the  buyer,  the 
seller,  as  we  have  seen,  has  no  rights  at  all  against  the 
goods  except  the  right  to  revest  title  in  himself  if  the  sale 
was  induced  by  the  buyer's  fraud.  As,  with  this  excep- 
tion, the  goods  are  free  from  any  rights  of  the  seller  while 
title  is  in  the  buyer,  it  follows  that  a  third  person,  pur- 
chasing from  the  buyer,  or  otherwise  standing  in  his 
shoes,  will  hold  the  goods  equally  free  from  any  claims 
of  the  seller. 

But  furthermore,  a  third  person  who  has  purchased 
the  goods  from  the  buyer,  in  good  faith,  acquires  a  title 
which  is  free  even  from  the  seller's  right  to  rescind  the 
sale  because  of  fraud.  That  is  to  say,  the  original  seller's 
right  to  revest  title  in  himself  because  of  the  buyer's 
fraud  is  lost  if  not  exercised  before  his  buyer  resells  to 
a  third  person  acting  in  good  faith.  So,  if  A  sells  goods 
to  B  and  gives  B  possession,  if  the  transaction  was  in- 
duced b}^  fraud  on  the  part  of  B,  A  may  revest  title  in 
himself  and  retake  the  goods  from  B.  But  if  before  A 
does  so,  B  passes  on  the  title  to  C,  who  takes  it  for  value 
and  in  good  faith,  A  can  not  retake  the  goods  from  C. 
This  rule  is  undoubtedly  based  on  the  same  principle  that 
permits  a  buyer  to  cut  off  his  seller's  right  of  stoppage 
in  transitu  by  sale  of  the  bill  of  lading.  That  is  to  say, 
although  the  buyer  has  title,  it  is  subject  to  the  defrauded 
seller's  right  to  retake  it;  but  when  the  buyer  has  passed 
his  title  to  a  sub-purchaser,  the  latter  has  not  only  title, 
but  also  an  equitable  right  in  the  goods,  and  the  two  to- 
gether are  superior  to  the  seller's  right."* 

57 — Truxton    v.    Fait    &   Slagle  buyer,  and  he  may  sell  or  dispose 

Co.,  1  Penna.    (Del.)   483,   73  Am.  of  them  to  a  bona  fide  purchaser 

St.  Rep.  81,  "Until  the  contract  is  for  value,  and  thus  vest  in  him  a 

rescinded  or  avoided,  the  title  or  good,    indefeasable,    and    irrevoc- 

property   in  the   goods   is   in   the  able   title   to   the   property.  •  •  • 

*See  Uniform  Sales  Act,  Section  24. 


226 


THE  LAW  OF  SALES 


Purchaser  Not  in  Good  Faith. — A  sub-purchaser  who 
has  not  taken  the  goods  in  good  faith,  or  for  value, 
although  he  may  get  his  seller's  title,  does  not  couple  an 
equitable  right  in  the  goods  with  it,  and  is,  therefore,  in 
no  better  position  to  resist  the  original  seller's  right  to 
the  goods  than  was  the  original  buyer.^^ 


A  consignee  of  goods  who  in  good 
faith  makes  advances  upon  them 
stands  precisely  in  the  same  posi- 
tion as  a  purchaser  for  value,  as 
against  the  original  vendor,  and 
the  same  principles  of  law,  in  this 
regard  apply  to  this  case." 
Schloss  V.  Estey,  114  Mich.  429; 
Pelham  v.  Chattahoochee  Grocery 
Co.,  146  Ala.  216,  119  Am.  St.  Rep. 
19,  stating  the  rules  as  to  the  bur- 
den of  proof;  Lee  v.  Wilkins,  79 
Mo.  Ap.  159,  mortgagee  of  fraudu- 
lent buyer  protected;  Levi  v. 
Bray,  12  Ind.  Ap.  9,  "It  is  well 
settled  that  even  though  a  sale  of 
property  is  induced  by  fraud  the 
title  vests  in  the  vendee,  subject 
to  the  right  of  the  vendor,  upon 
discovering  the  fraud  to  rescind. 
Until  the  vendor  elects  to  rescind, 
the  title  to  the  property  remains 
in  the  vendee,  and  a  sale  by  him 
for  value  to  a  third  person  who  is 
ignorant  of  the  fraud,  vests  a  good 
title  in  the  latter,  even  against 
the  original  vendor."  Wilk  v.  Key, 
Simmons  &  Co.,  117  Ala.  285,  as 
to  sub-buyers  who  take  in  pay- 
ment of  existing  debt;  Donaldson 
V.  Byrd  &  Co.,  16  Ky.  L.  R.  448; 
Hochberger  v.  Baum,  85  N.  Y.  S. 
385;  Tetrault  v.  O'Connor,  8  N.  D. 
15;  National  Bk.  v.  Bait.  &  O.  R.  R. 
Co.,  99  Md.  661,  105  Am.  St.  Rep. 
321;  Levi  v.  Booth,  56  Md.  305, 
dictum;  B.  &  O.  Ry.  Co.  v.  Good, 
82  O.  S.  278. 


Some  few  cases  indicate  that 
where  the  first  sale  has  been  in- 
duced by  fraud  it  is  absolutely 
void  and  vests  no  title  in  the  buy- 
er, but  that,  apparently  arbitrarily,, 
a  sub-purchaser  from  him  will  be 
treated  as  having  title.  Catlin  v. 
Warren,  16  111.  Ap.  418,  but  cf. 
Reid,  Murdoch  &  Co.  v.  Sheffy,  99 
111.  Ap.  189;  Root  v.  French,  13 
Wend.  (N.  Y.)   570. 

A  sale,  or  assignment,  of  a  right 
against  a  person,  as  distinct  from 
rights  in  respect  to  a  particular 
thing,  does  not  vest  the  buyer,  if 
guilty  of  fraud,  with  power  to  pass 
his  right  untainted  with  the  fraud 
to  an  innocent  sub-buyer.  A  con- 
trary rule  is  found  in  some  juris- 
dictions. See  Williston  on  Con- 
tracts, §  438. 

58— Reid,  Murdoch  &  Co.  v. 
Sheffy,  99  111.  Ap.  189;  Mashburn 
&  Co.  V.  Dannenburg  Co.,  117  Ga. 
567,  pledgee  as  security  for  ante- 
cedent debt  not  protected  because 
"the  debt  of  the  mortgage  creditor 
was  not  contracted  on  the  faith 
of  the  property  in  possession  of 
the  debtor."  Schweitzer  v.  Tracy, 
76  111.  345,  attaching  creditor; 
Oswego  Starch  Factory  v.  Len- 
drum,  57  Iowa  573;  Butters  v. 
Haughwont,  42  111.  18,  taken  in 
payment  of  existing  debt,  pro- 
tected; Load  V.  Green,  15  M.  &  W. 
216,  assignee  in  bankruptcy  not 
protected. 


RIGHTS  OF  THIRD  PERSONS  221 

What  Constitutes  a  Voidable  Title. — On  the  other  hand, 
as  we  have  already  seen,  if  the  first  buyer  has  no  title 
himself,  but  only  possession,  a  buyer  from  him,  no  matter 
how  innocent,  will  get  no  title.  So,  where  possession  is 
given  to  one  claiming  to  be  agent  of  another,  if  it  turns 
out  that  the  ''agency"  was  a  fiction  and  the  pretended 
agent  had  no  authority  to  act  for  his  alleged  principal,  but 
was  getting  possession  solely  for  himself,  there  is  no  title 
in  him.  The  contract  of  sale  was  not  made  vnth  him  in- 
dividually, but  with  his  principal,  through  him  as  agent. 
If  it  turns  out  that  there  was  in  fact  no  principal  for  him 
to  represent,  then  there  was  no  party  on  his  side  of  the 
contract  and,  in  consequence,  no  contract.  There  being 
no  contract,  no  title  could  have  passed  out  of  the  ' '  seller. ' ' 
It  could  not  have  passed  to  the  fictitious  principal ;  there 
was  no  intention  to  pass  it  to  the  alleged  agent  himself ;  it 
would  still  be  in  the  seller.  The  alleged  agent,  having  no 
title,  although  he  be  in  possession,  can  give  no  title  to  a 
purchaser.^^ 

Some  difficulty  in  applying  this  rule  arises  in  cases 
where  the  seller  does  intend  to  pass  title  to  the  physical 
person  to  whom  he  gives  possession,  but  believes  him  to  be 
another,  metaphysical,  person  of  a  certain  name  and 
credit.  Thus,  if  B  represents  himself  to  A  as  being  X  and 
having  X's  credit,  and  A  deals  with  B  and  puts  him  in 
possession,  the  question  arises,  did  B  get  even  a  voidable 
title. 

In  such  a  case  there  are  three  possibilities  as  to  A's 
real  intent.  He  may  have  intended  to  pass  title  to  the  per- 
son represented  by  the  visible  characteristics  before  him. 
Or,  he  may  have  intended  to  deal  mth  a  person  repre- 
ss— Smith  Premier  Typewriter  Mass.  187,  even  though  the  alleged 
Co.  V.  Stidger,  18  Colo.  Ap.  261,  principal  was  himself  the  sub- 
citing  Hamet  v.  Letcher,  37  O.  S.  purchaser  and  the  seller  sent  the 
356  and  Parker  v.  Dinsmore,  72  goods  direct  to  him. 
Pa.  St.  427;  Rogers  v.  Button,  182 


228  THE  LAW  OF  SALES 

sented  by  the  nominal  and  credit  characteristics  of  X, 
Or  he  may  have  intended  to  deal  with  a  person  repre- 
sented by  both  the  visible  characteristics  before  him  and 
the  name  and  character  of  X.  In  the  latter  case  there 
would  be  no  contract,  because  there  was  no  such  persoa 
and,  therefore,  there  was  no  ''other  side"  to  a  contract 
This  seems  the  most  probable  intent  on  A's  part,  but  the 
courts  ignore  it.  They  assume  that  he  intended  to  deal 
with  one  or  the  other  of  the  existing  personahties.  If  A 
intended  to  deal  with  that  represented  by  the  name  and 
credit  of  X,  then,  again,  there  would  be  no  contract.  The 
person,  X,  existed,  but  he  did  not  enter  the  contract  and 
therefore,  as  in  the  other  case,  the  contract  would  have 
but  one  side — and  would  not  be  truly  a  contract.  But  if 
A  intended  to  deal  with  the  person  represented  by  the 
visible  characteristics,  then  there  would  be  a  contract, 
even  though  entered  into  through  mistake,  because  that 
same  person  intended  to  contract  with  A.         , 

When  the  conflict  of  possibilities  is  between  the  person 
of  nominal  characteristics  and  the  person  of  visible  char- 
acteristics— the  courts  ignore  the  third  possibiUty — intent 
to  deal  with  the  visible  one  is  assumed.^®    But  where  the 

60— Edmunds  v.  Merchants  Dis-  [1919]    2    K.    B.    243;    Martin    v. 

patch    Co.,    135    Mass.    283,    "We  Green,    117    Me.    138;    Phelps    v. 

think  it  clear,  upon  principle  and  McQuade,    220    N.    Y.    232    L.    R. 

authority,  that  there  was  a  sale,  A.  1918  B  973.     The  rule  appears 

and    the    property    in    the    goods  to    be    in    dispute    in    regard    to 

passed    to    the    purchaser.  *  *  *  orders  for  the  payment  of  money. 

The    minds    of    the    parties    met  That     is,     where     a     payee     is 

♦  *  *.  The  fact  that  the  seller  was  named  and  the  maker  of  the  in- 
induced  to  sell  by  fraud  of  the  strument  gives  it  to  one  whom  he 
buyer  made  the  sale  voidable,  but  supposes  to  be  so  named  but  is  in 
not  void.  He  could  not  have  sup-  fact  not  that  nominal  person,  some 
posed  that  he  was  selling  to  any  courts  hold  that  the  drawee  must 
other  person;  his  intention  was  pay  to  the  nominal  person  intend- 
to  sell  to  the  person  present,  and  ed  by  the  drawer  and  is  not  pro- 
Identified  by  sight  and  hearing;  it  tected  in  paying  to  the  mere  physl- 
does  not  defeat  the  sale  because  cal  personality  whom  the  draw- 
the  buyer  assumed  a  false  name  er  thought  was  the  bearer  of  the 

•  •  •  ."    This  case  was  cited  and  name. 

followed    in    Phillips    v.    Brooks,  Dodge  v.  National  Exch.  Bk.,  20 


RIGHTS  OF  THIRD  PERSONS 


229 


confusion  is  between  the  nominal  personality  and  that 
represented  by  handwriting,  or  characteristics  other  than 
physical  appearance,  the  rule  appears  to  be  to  treat  the 
nominal  person  as  the  one  really  intended.^^ 

Avoidance  by  Infants. — An  infant's  right  to  avoid 


his  contract  of  sale  and  to  retake  title  and  possession  of 
the  chattel  sold  is  not  based  upon  mere  equitable  right, 
but  is  a  matter  of  public  policy  in  his  protection.  Conse- 
quently, when  a  third  person  has  acquired  the  chattel  for 
value  from  the  infant's  buyer,  that  third  person's  right 
to  keep  it  as  against  the  infant  seller  does  not  depend  on 
a  comparison  of  equities  as  affected  by  the  legal  title.  It 
depends  on  whether  public  policy,  as  interpreted  by  the 


O.  S.  235;  Tolman  v.  Am.  Nat'l  Bk., 
22  R.  I.  462,  84  Am.  St.  Rep.  850; 
Simpson  v.  Denver  &  R.  G.  R.  R., 
43  Utah  105,  46  L.  R.  A.  (n.  s.) 
1164;  Cf.  Mercantile  Nat'l  Bk.  v. 
Silverman,  132  N.  Y.  S.  1017,  aff. 
210  N.  Y.  567. 

But  contra,  Land  Title  &  Tr.  Co. 
V.  Northwestern  Bank,  196  Pa. 
230,  79  Am.  St.  Rep.  717,  50  L. 
R.  A.  75,  annotated;  Robert- 
eon  V.  Coleman,  141  Mass.  231; 
Heavey  v.  Com.  Nat'l  Bk.,  27  Utah 
222;  Hoffman  v.  Am.  Exch.  Bk., 
Neb.,  96  N.  W.  112;  Jamieson  v, 
Heim,  43  Wash.  153;  Boatsman  v. 
Stockman's  Nat'l  Bk.,  56  Colo. 
495;  McHenry  v.  Nat'l  Bk., 
85  O.  S.  203,  38  L.  R.  A.  (n.  s.) 
1111  N. 

61 — Pacific  Express  Co.  v. 
Shearer,  160  111.  215,  rejecting  the 
decision  in  Samuel  v.  Cheney,  135 
Mass.  278;  Consumers  Ice  Co.  v. 
Webster,  53  N.  Y.  S.  56,  dictum 
to  the  effect  that  physical  pres- 
ence of  agent  will  not  domi- 
nate      nominal       characteristics. 


Cundy  v.  Lindsay,  3  App.  Cas.  459, 
name  dominated  hand-writing. 
Newberry  v.  Norfolk  &  S.  R. 
Co.,  133  N.  C.  45.  Some  confusion 
is  caused  in  these  cases  by  con- 
founding the  question  of  which 
personality  was  intended,  with  the 
question  whether  a  carrier  is  ab- 
solutely bound  to  deliver  to  the 
person  so  intended.  On  the  lat- 
ter question  there  is  considerable 
diversity  of  opinion. 

Contra,  as  to  payee  of  a  promis- 
sory note.  First  Natl.  Bk.  v.  Am. 
Exch.  Bk.,  63  N.  Y.  S.  58,  170  N.  Y. 
88;  in  Sherman  v.  Corn  Exch.  Bk., 
86  N.  Y.  S.  341;  the  real  owner  of 
the  goods  for  which  the  note  was 
given  was  held  the  proper  payee, 
although  the  maker  had  in  mind 
another  person  of  the  same  name. 
The  maker  had  in  mind  a  person 
who  had  both  furnished  the  con- 
sideration and  had  certain  other 
characteristics;  as  there  was  no 
such  person  the  former  character- 
istic was  held  indicative  of  the  le- 
gally proper  payee. 


230  THE  LAW  OF  SALES 

courts,  requires  the  right  of  rescission  to  be  available 
even  against  such  third  persons.  The  decided  cases  indi- 
cate that  the  infant  can  retake  even  from  them.^** 

Avoidance  by  Insane  Persons. — Where  the  seller 


is  insane,  a  purchaser  from  his  buyer  is  in  no  better  posi- 
tion than  is  that  first  buyer,  but  the  right  of  the  insane 
person  to  avoid  even  as  against  the  first  buyer  varies  in 
different  jurisdictions.  The  weight  of  authority  is  that 
he  can  not  avoid  against  even  his  owm  buyer,  who  took 
in  good  faith  and  for  fair  consideration,  without  restora- 
tion of  the  consideration.^' 

62 — Hill  V.  Anderson,  5  Smed.  &      Am.  Dec.  409;  McMorris  v.  Webb, 
M.  (Miss.)  216;  Downing  v.  Stone,      17  S.  C.  558,  43  Am.  Rep.  629. 

47  Mo.  Ap.  144.  63— For  a  compilation  of  author- 

For   the   analogy   of   the   same  ^^y    ^^^    ^^^    ^^^^    ^^    Annotated 

rule  in  sales  of  real  property,  see  cag^g   19^4  d  gg? 
Harrod  v.  Myers,  21  Ark.  592,  76 

•See  Uniform  Sales  Act,  Section  2. 


CHAPTER  VI 

The  Statute  of  Frauds 
1.     Contracts  Affected  by  the  Statute 

In  1677  the  English  Parliament  put  into  effect  the 
Statute  of  Frauds,  This  was  enacted,  according  to  its 
preamble,  ^ '  For  prevention  of  many  fraudulent  practices 
which  are  commonly  endeavored  to  be  upheld  by  perjuTy 
and  subornation  of  perjury."  Its  several  sections  cover 
various  contracts  and  conveyances  of  land. 

The  seventeenth  section  concerns  contracts  for  the 
sale  of  goods  and  reads,  ' '  No  contract  for  the  sale  of  any 
goods,  wares  or  merchandises  for  the  price  of  ten  pounds 
Sterling  or  upwards  shall  be  allowed  to  be  good  except 
the  buyer  shall  accept  part  of  the  goods  so  sold  and  actu- 
ally receive  the  same  or  give  something  in  earnest  to 
bind  the  bargain  or  in  part  payment,  or  that  some  note 
or  memorandum  in  writing  of  the  said  bargain  be  made 
and  signed  by  the  parties  to  be  charged  by  such  contract 
or  their  agents  thereunto  lawfully  authorized." 

The  substance  of  this  statute,  in  slightly  varying  form, 
has  been  enacted  into  law  in  most  of  the  states  of  the 
Union. ^*  The  application  of  the  rule  to  particular  cases 
has  been  a  most  prolific  source  of  litigation. 

1 — This  Statute  did  not  become         This  Statute  should  not  be  con- 
a  part   of  the   common   law   and,      fused  with  statutes  declaring  sales 
therefore,  is  not  in  force  in  this      in  fraud  of  creditors  to  be  void,  as 
country  except  as  it  has  been  en-     was  done  in  Mahan  v.  U.  S.,  16 
acted  into  law  by  the  legislatures      Wall.  143. 
of  the  several  states.    Cleveland  v. 
Williams,  29  Tex.  204,  94  Am.  Dec. 
274. 

*See  Uniform  Sales  Act,  Section  4,  (1). 

231 


232  THE  LAW  OF  SALES 

Executory  Contracts. — The  first  question  to  arise  con- 
cerning its  application  is,  '*What  is  a  contract  of  sale?" 
Does  it  mean  a  contract  by  which  title  has  passed  and  the 
change  of  ownership  is  judicially  recognized,  or  a  con- 
tract by  which  title  is  to  be  passed?  The  English  courts 
were  originally  somewhat  at  variance  on  this  point. 
In  1829,  however,  Parliament  settled  this  disagreement 
by  the  passage  of  Lord  Tenterden's  Act,^  which  pro- 
vided that  the  17th  Section  of  the  Statute  of  Frauds 
should  '*  extend  to  all  contracts  for  the  sale  of  goods  of 
the  value  of  ten  pounds  Sterling  and  upwards,  notwith- 
standing the  goods  may  be  intended  to  be  delivered  at 
some  future  time,  or  may  not  at  the  time  of  such  con- 
tract be  actually  made,  procured,  or  provided,  or  fit  or 
ready  for  delivery,  or  some  act  may  be  requisite  for 
the  making  or  completing  thereof,  or  rendering  the  same 
fit  for  delivery." 

"While  this  later  statute  has  not  been  generally  adopted 
by  legislation  in  this  country,  the  courts  have  consist- 
ently assumed  that  the  Statutes  of  Fraud  in  the  various 
states  apply  to  all  contracts,  if  truly  contracts  of  sale, 
regardless  of  whether  title  has  or  has  not  passed.^* 

2 — 9  Geo.  IV.  Ch.  14.  a  contract  for  the  sale  of  goods 

3 — Atwater  v.  Hough,  29  Conn.  is  not  without  the  purview  of  the 

508,   79   Am.   Dec.   229,   defendant  statute  merely  because  it  Is  execu- 

had  contracted  to  sell  to  plaintiff  tory."      Accord,    Ide    &    Smith    v. 

100  sewing  machines  for  which  he  Stanton,  15  Vt.   685,  40  Am.  Dec. 

had  already  contracted withathird  698;   Downs  &  Skillinger  v.  Ross, 

party.    Some  of  the  machines  were  23  Wend.  (N.  Y.)  270,  contract  was 

already  manufactured,  others  were  for  sale  of  existing  wheat  to  be 

not.     No  title  to  any  of  them  was  threshed   and    cleaned   by   seller; 

to   pass   until    actual    delivery   of  Jackson    v.    Covert's    Admrs.,    5 

possession  to  the  plaintiff.    It  was  Wend.  (N.  Y.)  139;  Irwin  v.  Knox, 

held,   nevertheless,   that   the   con-  10  Johns.  (N.  Y.)  364.  "The  statute 

tract  wa.s  affected  by  the  Statute.  applies  as  well  to  executory  as  to 

"It  seems  now  to  be  settled,  in  ac-  other  contracts;  and  the  decisions 

cordance  with  the  rules  of  just  in-  of    the    English    courts,    on    this 

terpretation,aswell  as  the  dictates  point,  in  Rondeau  v.  Wyatt,  2  H. 

of  reason  and  common  sense,  that  Bl.  63,  and  in  Corper  v.  Elst/on,  7 

♦See  Uniform  Sales  Act,  Section  4,  (2). 


THE  STATUTE  OF  FRAUDS        233 

Contracts  to  Manufacture  and  Sell. — The  question 
whether  a  contract  is  a  contract  of  sale  or  a  contract 
to  do  ivork  has  caused  far  more  difficulty.  There  is  in 
fact  no  general!}''  accepted  test  by  which  one  can  be  dis- 
tinguished from  the  other. 

English  Rule. — The  early  English  decisions,  by 


their  holdings  that  the  Statute  did  not  apply  to  executory 
contracts,  necessarily  confined  the  Statute  to  cases  in 
which  title  could  pass  coincidently  with  the  making  of  the 
contract.  Contracts  for  goods  to  be  manufactured  were 
not  within  the  statute,  not  expressly  because  they  were 
contracts  for  work  and  labor,  but  because  title  was  to 
pass  in  the  future.* 

When,  subsequently,  the  courts  decided  that  executory 
contracts,  as  well  as  those  whereby  title  had  already 
passed,  were  properly  within  the  Statute,  instead  of 
overruling  the  preceding  decisions  they  '* distinguished" 
them.  In  Rondeau  v.  Wyatt^  it  was  held  that  the  Statute 
did  apply  even  though  title  to  the  goods  had  not  passed, 
and  Lord  Loughborough,  to  avoid  the  precedent  of  Tow- 
ers V.  Osborne,®  said  that  case  was  outside  of  the  statute 
"not  because  it  was  an  executory  contract,  as  it  has  been 
said,  but  because  it  was  for  work  and  labor  to  be  done, 
and  materials  and  other  necessary  things  to  be  found, 
which  is  different  from  a  mere  contract  of  sale,  to  which 
species  of  contract  alone  the  statute  is  apphcable." 

This  suggestion  that  a  contract  to  create  a  chattel 
might  be  outside  the  statute  was  followed  in  the  decision 
of  Groves  v.  Buck,''  holding  that  the  statute  did  not  apply 
where  the  thing  contracted  to  be  sold  was  not  in  existence 

Term  Rep.  14,  contain  the  sound  Statute.    Wallace  v.  Long,  105  Ind. 
and     just     construction     of     the  522,  55  Am.  Rep.  222,  5  N.  E.  666. 
statute."  4 — Towers  v.  Osborne,  1  Strange 
An    oral    contract    to    bequeath  506;    Clayton  v.   Andrews,  4  Bur- 
personal  property  by  will,  so  that  rows  2101. 
title    would    not    pass    until    the  5 — 2  H.  Bl.  63. 
death    of   the    testat^or,   has    been  6 — 1  Strange,  506. 
held   within   the   purview   of  the  7—3  M.  &  S.  178  (1814). 


234  THE  LAW  OF  SALES 

at  the  time  of  the  contract.  In  the  following  year,  how- 
ever, a  contradictory  decision  was  reached  in  Wilks  v. 
Atkinson.^  The  defendant  had  contracted  to  sell  to  the 
plaintiff  a  quantity  of  oil  to  be  pressed  from  seed  which 
the  defendant  had.  This  was  held  to  be  a  contract  of 
sale  of  goods  and  did  not,  therefore,  require  a  revenue 
stamp.  *'A  baker,"  said  the  court,  ^'agrees  to  produce 
me  a  loaf  tomorrow;  he  has  not  the  bread,  but  he  has 
the  flour,  and  is  to  make  it  into  bread,  and  deliver  it. 
How  often  does  a  butcher  contract  to  deliver  meat,  Avhen 
he  has  not  the  meat,  and  the  beast  is  not  yet  killed?  It  is 
out  of  all  common  sense  to  say  this  is  not  a  contract  relat- 
ing to  goods,  wares,  and  merchandises."® 

In  Clay  v.  Yeates^*'  the  contract  sued  on  was  for  the 
printing  of  a  book,  the  printer  to  furnish  the  paper. 
This  was  held  not  to  be  a  contract  of  sale,  but  one  to  do 
work  and  labor  and,  therefore,  not  required  to  be  in  writ- 
ing. 

In  Lee  v.  Griffin,"  however,  one  of  the  most  frequently 
cited  cases  on  the  point.  Clay  v.  Yeates  was  practically 
overruled.  The  contract  was  for  the  manufacture  and 
fitting  of  a  set  of  false  teeth.  It  was  held  to  be  a  con- 
tract for  the  sale  of  goods,  and  therefore  required  to  be 
in  writing.  Justice  Blackburn  laid  down  the  general 
proposition  that  '*If  the  contract  be  such  that,  when  car- 
ried out,  it  would  result  in  the  sale  of  a  chattel,  the 
party  can  not  sue  for  work  and  labor ;  but,  if  the  result 
of  the  contract  is  that  the  party  has  done  work  and  labor 
which  ends  in  nothing  that  can  become  the  subject  of  a 
sale,  the  party  can  not  sue  for  goods  sold  and  delivered," 
This  ''rule"  appears  to  furnish  a  real  test,  i.  e.,  if  the 
contract  will  result  in  the  transfer  of  title  to  a  chattel,  it 
is  a  contract  of  sale,  regardless  of  the  relative  value  of 

8—6   Taunton   11    (1815).  561    (1829),   sale  of  timber  to  be 

9 — Accord,  Garbutt  v.  Watson,  5  made  from  seller's  own  trees. 

Bam.   &   Aid.   613    (1833),  sale  of  iq— i  Hurl.  &  Norm.  73   (1856). 

flour   to    be    Kround    from    wheat;  ^^_^  ^^^^^  ^  g^j^j^^  272  (1861). 

Smith  V.  Surman,  9  Barn.  &  Cress., 


THE  STATUTE  OF  FRAUDS        235 

the  chattel,  as  such,  and  of  the  personal  element  involved 
in  its  production.  But,  unfortunately,  Blackburn  de- 
stroys its  apparent  certainty  in  his  next  sentence,  saying 
that  the  preparation  by  an  attorney  of  a  deed  is  a  con- 
tract of  work  and  labor,  despite  the  fact  that  the  written 
paper,  when  done,  is  a  chattel  the  ownership  of  which 
is  transferred  from  the  attorney  to  the  client.  However, 
the  rule  as  stated  is  still  the  English  rule  and  gives  a  wide 
scope  to  tho  meaning  of  ** contracts  of  sale"  as  used  in 
the  Statute.i2 

The  most  satisfactory  statement  of  the  English  rule 
seems  to  be  that  there  is  a  sale,  within  the  Statute  of 
Frauds,  when  the  contract  involves  a  transfer  of  title 
to  a  chattel  which  has  an  intrinsic  value  of  its  own  suf- 
ficient to  be  recognized  by  the  courts. 

New  York  Rule. — The  courts  of  the  United  States, 


although  recognizing  that  the  Statute  applies  to  executory 
contracts,  are  greatly  at  variance  as  to  the  distinction 
between  a  contract  of  sale  and  one  for  work  and  labor. 
The  New  York  courts  early  took  the  opposite  extreme 
from  the  view  of  the  English  courts.  They  admit  that 
coincident  passing  of  title  is  not  necessary  to  bring  a 
contract  within  the  Statute,  nor  is  even  the  possibility  of 
immediate  passing  of  title  necessary.  The  Statute  applies 
to  contracts  to  pass  title  as  well  as  to  those  by  which  title 
has  been  passed.^^   But  while  thus  overruling  and  discard- 

12 — Compounding  of  a  prescrip-  13 — Irwin  v.  Knox,  10  Johns.  (N. 

tion  by  a  druggist  and  transfer  of  Y.)  364;  Jackson  v.  Covert's  Admrs., 

title  to  the  compound  is  a  "sale"  5  Wend.    (N.   Y.)    139;    Downs   & 

and  not  a  mere  contract  for  "per-  Skillinger    v.    Ross,    23    id.    270; 

sonal     service."      Rex     v.     Wood  Chamberlain  v.  Jones,  52  N.  Y.  S. 

Green  Profiteering  Com.  [1920],  K.  998,  contract  to  sell  bonds  not  then 

B.   55,  89  L.  J.  R.  55;   furnishing  owned  by  seller  held  a  contract  of 

of    coffee    in    a    restaurant    is    a  sale;  Nichols  v.  Clark,  81  N.  Y.  S. 

"sale,"  Rex  v.  Birmingham  Profit-  262;  Juilliard  v.  Trokie,  124  N.  Y. 

eering  Com.    [1920],  K.  B.  57,  89  S.  121,  even  though  the  goods  be 

L.  J.  R.  59;  contract  to  paint  a  por-  not  in   existence,   if  the  seller  is 

trait    held    a    contract    for    sale,  not  himself  the  manufacturer. 
Isaacs  V.  Hardy,  1  Cab.  &  E.  287. 


236  THE  LAW  OF  SALES 

ing  the  reasons  stated  in  Towers  v.  Osborne^*  and  Clayton 
V.  Andrews^^,  the  New  York  courts  do  adopt  the  conclu- 
sions of  these  cases,  as  explained  in  Eondeau  v.  Wyatt.^® 
Thus,  Sewall  v.  Fitch"  involved  a  contract  by  the  defend- 
ant to  sell  300  kegs  of  nails  of  a  specified  kind.  The  de- 
fendant had  no  nails  at  hand  but  was  to  manufacture 
them.  The  court  held  that  this  contract  did  not  need 
to  be  in  writing  as  it  was  not  a  contract  for  the  sale 
of  goods,  but  one  for  work  and  labor.  Referring  to  Tow- 
ers V.  Osborne  and  Clayton  v,  xVndrews  the  court  said 
*' those  cases  were  rightly  determined  though  upon  a 
wrong  principle, '  '^* 

Complementary  to  this  rule  are  the  decisions  that  if  the 
thing  sold  does  exist  at  the  time  of  the  contract  it  is  a 
contract  of  sale  within  the  Statute  despite  the  fact  that 
something  is  still  to  be  done  to  put  the  thing  in  a  deliv- 
erable condition,  or  to  make  it  fit  for  use. 

Therefore  the  rule  in  New  York,  often  called  the  ' '  New 
York  rule,"  appears  to  be  that  a  contract,  to  be  a  con- 
tract of  sale  within  the  Statute,  must  be  for  the  transfer, 
whether  immediately  or  in  the  future,  of  a  chattel  in 
existence  at  the  time  of  the  contract.^® 

14 — 1  strange  506,  ante.  But,  furthermore,  unless  the  seller 

15 — 4  Burrows  2101.  himself  is   to   manufacture   them, 

16 — 2  H.  Bl.  63,  ante.  the  courts   do  not   inquire  where 

17—8  Cow.  (N.  Y.)  215  (1828).  he  is  to  get  them.    It  is  immaterial 

18 — Higgins  v.  Murray,  73  N.  Y.  that  he  must  have  them  manufac- 

252,  contract  to  make  a  circus  tent;  tured  by  a  third  person;  his  con- 

Gerli  v.  Metzger  &  Co.,  99  N.  Y.  S.  tract  with  the  buyer  is  treated  as 

858,  51  Misc.  46;  Myers  Bros.  Drug  a  contract  of  sale.     Thus  it  hap- 

Co.  V.  McKinney,  121  N.  Y.  S.  845.  pens    that    even    the    New    York 

19 — While    this    is    clearly    the  courts  do  occasionally  treat  what 

idea   of   the   rule   and   is   in   sub-  is  in  reality  a  contract  for  goods 

stance  the  common  judicial  state-  not  in  existence  as  a  contract  of 

ment,  it  is  in  one  application  in-  sale.     Juilliard  v.   Trokie,   124  N. 

accurate.     The  fact  that  the  seller  Y.  S.  121 ;  Dow  v.  Sehloss,  12  Daly 

does   not  himself  own   the   goods  533;    Evarts   v.    Thorn,   11   N.   Y. 

at  the  time  of  his  contract,  and  State  Rep.  668;    Pitkin  v.  Noyes, 

therefore,   can   not   deliver   imme-  48  N.  H.  294;  2  Am.  Rep.  218;  cf. 

diate   title,   does   not   prevent   the  Prescott    v.    Locke,    51    N.    H.    94, 

contract  from  being  one   of  sale.  12  Am.  Rep.  55;   Palewski  v.  Har- 


THE  STATUTE  OF  FRAUDS        237 

But  this  rule,  like  its  opposite  English  rule,  leaves  a 
modicum  of  uncertainty  in  its  application.  As  inter- 
preted by  the  courts  there  may  be  uncertainty  as  to 
just  what  the  chattel  is  that  a  particular  contract  deals 
with.  In  Kellogg  v.  Witherhead^°  the  defendant  -had 
agreed  to  buy  "all  the  hams  aud  shoulders  plaintiffs 
would  smoke"  at  10c  a  pound.  The  agreement  was  not 
in  writing.  Obviously  the  question  was  whether  it  was  a 
contract  for  hams,  to  be  smoked  by  the  plaintiff,  or  a 
contract  for  smoked  hams.  The  court  held  that  it  was 
the  former.  *'Tliis  was  a  contract  for  sale,  not  for  work 
and  labor.  The  plaintiffs  were  not  to  make  the  hams; 
they  were  to  smoke  them."^^  So,  in  Fitzsimmons  v. 
Woodruff*^^  the  contract  was  for  a  mantel  selected  at  the 
plaintiff's  store,  but  which  the  plaintiff  was  to  set  up 
in  the  buyer 's  house  with  certain  alterations  in  it.  It  was 
held  a  contract  for  sale  of  the  mantel  as  it  stood. 

On  the  other  hand,  in  Mead  v.  Case^^  the  defendant 
had  agreed  to  take  a  certain  stone  monument  then  in 
the  plaintiff's  shop,  but  which  the  plaintiff  w^as  to  polish 
and  letter  with  the  appropriate  names.  This  was  held 
to  be  a  contract  to  make  a  polished  and  lettered  monu- 
ment and  therefore  not  a  contract  of  sale. 

Reason  of  the  Different  Rules. — The  reason  for  the 


difference  between  the  English  rule  and  that  of  New 

greaves,  47  N.  J.  L.  334;   54  Am.  gelded  at  seller's  risk  rather  than 

Rep.  162.     But  compare,  Webster  for  the  gelded  animal.     Downs  v. 

V.  Zielly,  52  Barb.  (N.  Y.)  482.  This  Ross,     23     Wend.     (N.     Y.)     270, 

subject  is   discussed   in  the  note  wheat,      to      be      threshed      and 

in  19  A.  &  E.  Ann.  Cas.  1298.  cleaned;   Flint  v.  Corbitt,  6  Daly 

20— 6  Thompson  &  Cook  (N.  Y.)  (N.    Y.)    429;    Brewster    v.    Tay- 

525.  lor,    63    N.    Y.    587;     sale    of    a 

21 — In  Bates  v.  Coster,  3  Thomp-  wagon   to   be    fitted   with    a   new 

son  &  Cook  (N.  Y.)  580,  the  plain-  pole;   Seymour  v.  Davis,  4  Super, 

tiff  offered  to  sell  a  colt.    The  de-  Ct.  (2  Sandf.)-  239,  cider  to  be  re- 

fendant  replied,  "If  you  will  cas-  fined;   Cooke  v.  Millard,  65  N.  Y. 

trate  him,  when  he  is  well  I  will  352. 

give    you    $1,000    for    him.      The  22—1  Thompson  &  Cook  3. 

court  held  that  the  contract  was  ^q qq  Barb    202 

for    the    existing    animal,    to    be 


238  THE  LAW  OF  SALES 

York  is  not  expressed  in  the  decisions.  The  opinions  are 
founded  on  precedent,  or  original  statement  that  a  trans- 
action is  or  is  not  a  "sale,"  rather  than  on  any  logical 
reasoning  as  to  the  meaning  and  apphcation  of  the  Stat- 
ute. The  customary  definition  of  a  "  sale ' '  is,  in  effect,  a 
transfer  of  the  ownership  of  specific  personal  property 
from  one  person  to  another  for  a  consideration  valued  in 
money.  By  this  accepted  definition,  every  contract  for 
a  monetary  consideration  to  make  a  chattel  for  another, 
which  contemplates  the  ultimate  transfer  of  ownership 
of  the  chattel  when  made,  to  the  one  for  whom  it  is 
made,  is  undeniably  a  contract  of  "sale".  It  may  be 
primarily  an  agreement  to  do  work,  but  since  it  contem- 
plates also  the  transfer  of  ownership  of  the  thing  to  be 
made  it  is,  in  that  respect,  a  contract  to  sell  the  article. 
In  the  literal  interpretation  of  the  Statute,  therefore,  the 
English  rule  is  clearly  the  more  logical. 

Moreover,  as  is  indicated  in  other  cases,  the  real  pur- 
pose of  the  Statute  is  in  dispute.  Its  preamble  reads, 
"For  prevention  of  many  fraudulent  practices  commonly 
endeavored  to  be  upheld  by  perjury  and  subornation  of 
perjury."  The  tendency  to  perjury  would  seem  to  be 
just  as  great  in  regard  to  a  contract  whose  primary  pur- 
pose is  the  manufacture  of  a  chattel,  ultimately  to  be 
transferred  to  the  other  party,  as  it  would  be  in  regard 
to  a  contract  whose  primary  and  immediate  purpose  is 
the  transfer  of  ownership.  In  this  view  of  the  Statute, 
the  English  rule,  which  brings  all  such  contracts  within 
the  Statute,  seems  clearly  the  better. 

On  the  other  hand,  Blackstone's  sole  comment  on  the 
Statute  is  that  "The  Statute  of  frauds  and  perjuries 
(was)  a  great  and  necessary  security  to  private  prop- 
erty."** If  its  purpose  is  to  protect  the  ownership  of 
property,  there  is  justification  for  interpreting  its  use  of 
"contract  of  sale"  as  meaning  a  contract  whose  primary 
purpose  is  the  transfer  of  title  of  existing  property. 

24 — Commentaries,  Bk.  4,  p.  440. 


THE  STATUTE  OF  FRAUDS        239 

"While  the  foregoing  may  be  an  explanation  of  the  dif- 
ference in  the  rules  there  is  no  clear  evidence  in  the 
decisions  that  it  is,  and  the  English  cases  certainly  are 
not  consistent  in  treating  the  Statute  as  designed  pri- 
marily to  prevent  perjury.  Probably  the  best  that 'can 
be  said  of  any  rule  as  to  what  constitutes  a  contract  of 
sale  within  the  meaning  of  the  Statute  is  that  ''This  rule 
may  not  be  logical — ^very  likely  it  is  not,  as  an  original 
proposition;  but  that  it  is  the  rule  established  by  the 
authorities  there  can  be  no  doubt. '  '^^ 

Massachusetts  Rule. — The  Massachusetts   courts 


have  taken  a  position  often  called  "the  Massachusetts 
rule, ' '  between  the  extremes  of  the  English  rule  and  that 
of  New  York.  They  follow  the  New  York  rule  to  the  ex- 
tent of  holding  that  the  primary  purpose  of  the  agreement 
is  what  makes  it  a  contract  of  sale,  or  otherwise,  and, 
therefore,  that  not  all  contracts  are  within  the  Statute 
merely  because  they  contemplate  ultimately  a  change  of 
ownership  of  a  chattel.  On  the  other  hand,  Massachusetts 
does  not  go  so  far  as  New  York  in  requiring  that  the  chat- 
tel sold  be  in  existence  at  the  time  of  the  contract.  Even  if 
the  seller  has  contracted  to  manufacture  the  chattel,  it 
will  be  a  contract  of  sale  "within  the  Statute  if  it  is  a  chat- 
tel that  the  seller  would  normally  have  made  for  the 
general  market.  Thus  in  Gardner  v.  Joy^°  the  defendant 
had  contracted  to  make  and  deliver  to  the  plaintiff  100 
boxes  of  candles  at  an  agreed  price.  The  defendant  was 
to  make  the  candles  subsequently  to  the  agreement. 
It  does  not  positively  appear  that  he  was  in  the  candle 
manufacturing  business,  but  apparently  the  candles  were 
such  as  were  normally  made  for  general  market.  The 
court  held  it  to  be  a  contract  of  sale.^'  So,  also,  in  Lamb 

25 — Evans   v.   Winona   Lumber  sons  v.  Loucks,  48  N.  Y.  17,  where 

Co.,  30  Minn.  515.  a  contract  by  a  manufacturer  of 

26 — 9  Mete.  (Mass.)  177.  paper  to  make  and  deliver  a  cer- 

27 — Compare,   as  to  the   differ-  tain    amount    of    book-paper   was 

ence  in  the  New  York  rule,  Par-  held  a  contract  for  work  and  labor 


240  THE  LAW  OF  SALES 

V.  Crafts,^^  a  contract  by  a  tallow  manufacturer  to  make 
and  deliver  a  quantity  of  refined  tallow  prepared  from 
the  raw  material  was  held  a  contract  of  sale,  the  court 
saying,  "Where  a  person  stipulates  for  a  future  sale  of 
articles  which  he  is  habitually  making  and  which,  at 
the  time,  are  not  made,  or  finished,  it  is  essentially  a 
contract  of  sale,  and  not  a  contract  of  labor;  otherwise 
when  the  article  is  made  pursuant  to  the  agreement.^^ 

But,  on  the  other  hand,  if  the  article  contracted  for 
is  not  an  article  that  would  normally  have  been  made 
for  the  general  market,  the  contract  is  not  one  of  sale, 
even  though  it  intends  the  transfer  of  title  to  the  article. 
Thus  in  Mixer  v.  Howarth^"  the  plaintiff  was  a  manu- 
facturer of  buggies.  At  the  time  of  the  contract  he 
had  on  hand  the  nearly  finished  body  of  a  buggy.  He 
contracted  with  the  defendant  to  finish  this  body  and 
to  line  it  with  cloth  selected  by  the  defendant.  In  addi- 
tion to  the  fact  that  it  was  to  be  lined  according  to  the 
defendant's  desires,  there  was  some  evidence  that  the 
plaintiff  would  not  have  completed  it  at  all  that  year 
except  for  the  defendant's  order.  This  was  held  to  be  a 
contract  for  work  and  labor  and  not  a  contract  for  sale. 

This  decision  is  not  entirely  reconcilable  in  spirit  with 
the  rule  just  quoted  as  laid  down  by  the  same  judge, 
Chief  Justice  Shaw,  in  Lamb  v.  Crafts'^  a  few  years 
later.  A  buggy  would  seem  to  be  a  thing  habitually 
made  by  a  buggy-manufacturer,  unless  the  difference  is 
in  the  mere  agreement  to  line  it  with  the  kind  of  cloth 
the  buyer  wanted.  The  fact  is  that  the  Massachusetts 
rule,  while  even  more  definite  than  the  New  York  rule 
both  in  statement  and  in  the  consistency  with  which 

because  the   subject  matter  was  "tussah" — a    wound    and    twisted 

not  in   existence  at  the  time  of  silk,  made  out  of  raw  silk — was 

the  contract,  held  to  be  a  contract  for  work  and 

28—12  Mete.  (Mass.)  353.  labor. 

29— Compare  with  Gerli  v.  Metz-  30—21  Pick  (Mass.)  205. 

ger  &  Co.,  99  N.  Y.  S.  858,  51  Misc.  31—12  Mete.  (Mass.)  353. 
46,  where  a   contract   to   furnish 


THE  STATUTE  OF  FRAUDS        241 

courts  follow  a  definite  idea,  has,  like  the  others,  a  bor- 
der line  of  cases  Avhere  the  application  is  uncertain.  As 
the  court  itself  expresses  the  matter,  ''It  is  true  that  in 
'the  infinitely  various  shades  of  different  contracts'  there 
is  some  practical  difficulty  in  disposing  of  the  questions 
that  arise  under  that  (17th)  section  of  the  Statute.  But 
we  see  no  ground  for  holding  that  there  is  any  uncer- 
tainty in  the  rule  itself.  "^'^ 

Rule  of  Other  States. — The  rest  of  the  states  follow, 


though  with  an  occasional  inconsistency,  one  or  another 
of  these  three  rules.  In  some  states  one  or  the  other  rule 
has  been  declared  effective  by  Statute. 

Exchanges. — The  distinction  between  a  '  *  sale ' '  and  an 
"exchange",  which  has  been  so  clearly  made  by  the  courts 
in  regard  to  statutes  prohibiting  the  "sale"  of  intoxi- 
cating liquor^',  is  not  recognized  in  connection  with  the 
Statute  of  Frauds.  A  contract  to  pass  the  title  to  chattels 
is  a  contract  of  sale,  within  the  meaning  of  the  latter 
statute,  regardless  of  whether  the  consideration  is  reck- 
oned in  terms  of  money  or  not.^* 

32 — Goddard  v.  Binney,  115  tracts  of  barter  are  regarded,  so 
Mass.  450.  Accord,  that  a  contract  far  as  the  statute  of  frauds  is  con- 
to  manufacture  a  chattel  not  such,  cerned,  as  contracts  of  sale."  Cit- 
as  the  maker  would  naturally  man-  ing  Bowling  v.  McKenney,  124 
ufacture  for  general  trade  is  not  a  Mass.  478;  Kuhus  v.  Gates,  96  Ind. 
contract  of  sale,  Smalley  v.  Ham-  66,  and  Rutan  v.  Hinchman,  30  N. 
blin,  170  Mass.  380.  J.  L.  255. 

ZZ—Ante,  p.  3.  Bennett  v.  Hull,  10  Johns.    (N. 

34 — In  Gorman  v.  Brossard,  120  Y.)  364,  apples  in  exchange  for 
Mich.  611,  the  contract  was  to  de-  liquors;  Franklin  v.  Matoa  Gold 
liver  curb  stone  in  consideration  Mining  Co.,  158  Fed.  941,  16  L.  R. 
of  the  cancellation  of  a  debt.  This  A.  (n.  s.)  381,  contract  to  trans- 
might  well  have  been  held  to  be  fer  shares  of  stock  in  return  for 
such    a    consideration    as    would  services. 

make  the  agreement  one  of  sale,  Contra,     Spinney     v.     Hill,     81 

but  the  court  treated  it  as  a  con-  Minn.    316,    contract    to    transfer 

tract  of  barter  and  exchange  and  shares  of  stock  in  return  for  serv- 

quoted  with  approval  from  Browne  ices. 
on  the  Statute  of  Frauds,  "con- 


242  THE  LAW  OF  SALES 

Other  Contracts. — Contracts  which  do  not  contemplate 
the  transfer  of  title  between  the  parties  thereto  are  not 
contracts  of  sale  within  the  Statute,  even  though  they 
relate  to  and  their  subject  matter  involves  a  contract 
of  sale  between  one  of  the  parties  with  some  one  else. 
Thus  a  contract  whereby  two  persons  agree  to  cooperate 
In  selling  the  property  of  one  of  them  to  a  third  person 
is  not  itself  a  contract  of  sale."^  Likewise,  a  contract 
whereby  one  person  authorizes  another  to  buy  goods  for 
him,  as  his  agent,  is  a  contract  of  agency  and  not  a 
contract  of  sale.^^ 

Mortgages  of  personal  property,  although  in  a  certain 
legal  usage  they  are  said  to  pass  the  title  to  the  mort- 
gagee, seem  to  be  held  not  to  be  contracts  of  sale  within 
the  meaning  of  the  Statute.^''' 

A  contract  as  part  of  a  contract  of  sale,  to  ** rescind" 
the  sale,  or  to  take  back  title  in  case  the  buyer  becomes 
dissatisfied,  is  not  itself  a  contract  of  sale.^® 

35— Bogigian  V.  Harsanoff,   186  143  Wis.  639;  Trenholm  v.  Kloep- 

Mass.  380.  per,  88  Neb.  236. 

36 — Wiger  v.  Carr,  Wis.,  11  L.  R.  The  real  reason  why  such  a  con- 

A.  (n.  s.)  650;  Kutz  v.  Flersher,  67  tract  is  not  covered  by  the  Statute 

Cal.  93;  Hatch  V.  McBrien,  83  Mich,  is     not     altogether     clear.      The 

159;  Frank  v.  Murray,  7  Mont.  4;  authorities  just  cited  indicate  that 

Stover  V.  Flack,  41  Barb.   (N.  Y.)  it   is   considered   as   not   being   a 

162.  contract  of  sale.     Other  decisions. 

The  fact  that  part  of  the  con-  however,  indicate  that  it  might,  as 

tract    relates    to    something    else  a  whole,  be  a  contract  of  sale  pri- 

than  a  sale  does  not  prevent  the  marily  within  the  Statute,  but  that 

contract  from  coming  within  the  it  has  been  taken  out  of  the  Stat- 

Statute,    Atwater    v.    Hough,    29  ute    through    the    buyer's    receipt 

Conn.  508,  79  Am.  Dec.  229;   Pit-  and     acceptance     of     the     goods, 

kin  V.  Noyes,  48  N.  H.  294.  Gurwell  v.  Morris,  2  Cal.  Ap.  451, 

37— Mower  v.  McCarthy,  79  Vt.  83  Pac.  578;   Armstrong  v.  Orlen, 

142,  7  L.  R.  A.  (n.  s.)  418,  an  oral  220  Mass.  112;  Freemont  Carriage 

mortgage  was  held  effective,  but  Co.  v.  Thomsen,  65  Neb.  370. 

the  Statute  was  not  referred  to;  This  latter  idea  is  strengthened 

Bogigian  v.  Hassanoff,  186   Mass.  by  the  fact  that  a  contract  to  take 

380,  71  N.  E.  789.  back  goods   sold,   standing  as   an 

38 — Schaefer  v.  Strieder,  203  entirety  by  itself,  may  be  a  con- 
Mass.  407;  llilliard  v.  Weeks,  173  tract  of  sale.  Karrer  v.  Madden, 
Mass.   304;    Haukwitz   v.   Barrett,  152  Wis.  646. 


THE  STATUTE  OF  FRAUDS        243 

Subject  Matter. — If  it  has  been  determined  that  a  con- 
tract is  a  contract  of  sale,  within  the  meaning  of  the 
Statute,  the  question  then  arises  whether  it  is  a  contract 
for  sale  of  the  particular  things  specified  in  the  Sta^tute. 
The  original  Statute  covered  sales  of  "goods,  wares  or 
merchandises."  This  is  also  the  language  of  many  of 
the  state  statutes.  Other  statutes  read,  "goods,  chattels, 
or  things  in  action."  Still  others  include  "personal 
property." 

IncorpCi#«».^    Property.  —  Under    the    expression 


"goods,  wares,  or  merchandise,"  there  has  been  consider- 
able question  as  to  whether  anything  but  corporeal  prop- 
erty is  included.  Stock  certificates,  promissory  notes,  and 
similar  evidenciary  documents  of  debts  or  rights  in  action, 
are  themselves  tangible  things.  But  it  has  generally  been 
held  that  transactions  relating  to  such  things,  although 
in  words  they  purport  to  deal  mth  the  certificate,  or  the 
note,  etc.,  really  relate  to  the  "right"  represented  by  the 
corporeal  certificate,  note,  etc.,  and  therefore  are  essen- 
tially contracts  for  the  transfer,  or  whatever  it  may  be,  of 
the  intangible  right.  Consequently  it  is  in  relation  to 
contracts  for  the  sale  of  shares  of  stock,  promissory 
notes,  etc.,  that  the  question,  w^hether  such  incorporeal 
things  are  goods,  wares  or  merchandises,  has  chiefly  been 
before  the  courts.* 

In  England  the  rule  is  that  such  things  are  not  goods, 
wares  or  merchandises.^^ 

In  the  United  States,  however,  some  statutes,  as  noted, 
specifically  include  "things  in  action,"  or  "personal 

39— Duncufl  v.  Albrecht,  12  Sim.  In  Knight  v.  Barker,  16  M.  &  W. 

189;  Bradley  v.  Holdsworth,  2  M.  66,  a  contract  for  sale  of  stock  was 

&  W.  422;   Tempest  v.  Kilner,  3  held  not  exempt  from  the  stamp 

C.  B.  249;  Bowlby  v.  Bell,  3  C.  B.  tax  as  were  contracts  for  sale  of 

284;   Watson  v.  Spratley,   10  Ex.  goods,  wares  and  merchandise. 
222;  Humble  v.  Mitchell,  11  E.  & 
E.  205. 

*See  Uniform  Sales  Act,  Section  4,  76  "Goods". 


244  THE  LAW  OF  SALES 

property,"  either  of  which  would  include  shares  of  stock 
and  the  like.*°  Even  where  the  statute  reads,  ''goods, 
w^ares  and  merchandises,"  the  American  courts  tend  to 
hold  that  so-called  intangible  property  is  included,  al- 
though there  is  not  entire  harmony.  In  Sprague  v. 
Hosie,*^  the  court  held  that  savings  bank  stock  was  goods, 
wares  or  merchandise,  saying, ' '  It  must  be  admitted  that 
at  common  law  shares  of  an  incorporated  company  occu- 
pied much  the  same  position  as  promissory  notes  and 
other  mere  choses  in  action.  *  *  *  Such  shares  have, 
however,  come  to  be  subjects  of  common  barter  and  sale, 
arft  usually  evidenced  by  certificates  which,  in  the  absence 
of  statute  provisions,  operate  by  assignment  and  deliv- 
ery to  transfer  title  to  the  shares  as  between  the  parties. 
They  are  in  this  state  by  statute  subject  to  levy^  and  sale 
or  execution.  In  many  other  respects  they  are  treated  as 
something  more  than  mere  choses  in  action.  *  *  *  That 
contracts  for  the  sale  and  delivery  of  shares  of  stock 
are  subject  to  the  mischief  aimed  at  by  the  statute  must 
be  admitted.  We  are  of  the  opinion  that  reason  and  the 
weight  of  authority  favor  the  conclusion  that  shares  of 
stock  in  an  incorporated  company,  the  shares  having  been 
issued,  are  goods  within  the  meaning  of  the  statute  of 
frauds.  It  follows  that  the  parole  contract  for  their  sale 
was  invalid."*^ 

40 — Franklin  v.  Matoa  Gold  Min-  merchandise,  within  the  Statute  of 

ing  Co.,  158  Fed.  941,  16  L.  R.  A.  Fraud  is  almost  unanimously  rec- 

(n.   8.)    381;    So.   Life  Ins.   Co.  v.  ognized  by  the  courts  of  this  coun- 

Cole,  4  Fla.  359.  try",  note  in  19  L.  R.  A.   (n.  s.) 

41 — 155  Mich.  30,  19  L.  R,  A.  (n.  874,  citing  many  cases.     See  also, 

s.)  874.  Stifft  V.  Stiewel,  91  Ark.  445;   18 

42— Citing,  Tisdale  v.  Harris,  20  Ann.   Cas.   597;    Russell  v.  Betts, 

Pick.  (Mass.)  9;  Boardman  v.  Cut-  107  Ark.  629;    Korrer  v.  Madden, 

ter,  128  Mass.  388;   North  v.  For-  152  V7is.   646;    Snowstorm  Co.   v. 

est,  15  Conn.  400;  Pray  v.  Mitchell,  Johnson,  186  Fed.  745;  Hewson  v. 

60  Me.  430;  Spear  v.  Bach,  82  Wis.  Peterman  Mfg.  Co.,  76  Wash.  600, 

192;   Johnson  v.   Mulvy,  51  N.  Y.  51  L.   R.  A.    (n.   s.)    398;    Nichols 

634.  V.  Clark,  81  N.  Y.  S.  262;  Laundry 

"The  doctrine  that  a  contract  for  Co.  v.  Whitmore,  92  O.  S.  44. 
the  sale  of  corporate  stock  is  one  But  shares  are  not  "goods,"  Rog- 

for  the  sale  of  goods,  wares  and  ers  v.  Burr,  105  Ga.  432,  70  Am.  St. 


THE  STATUTE  OF  FRAUDS        245 

A  contract  by  a  corporation  to  sell  its  own  stock  was 
held  a  contract  for  the  sale  of  goods,  in  Hewson  v.  Peter- 
man  Mfg.  Co.** 

Contracts  of  subscription  for  corporate  stocks  to^  be 
issued  have  been  held  not  within  the  Statute  on  the 
ground,  not  that  stock  was  not ' '  goods, ' '  but  that  the  con- 
tract was  not  one  of  **sale."**  The  transfer  of  a  promis- 
sory note  has  been  held  to  be  a  sale  of  ''goods.""  So 
also  a  contract  to  assign  a  debt.*^ 

Water,  Ice. — A  contract  to  supply  water  has  been 


held  a  sale  of  goods,*'  and  ice,  whether  cut  or  uncut,  is 
personalty.*® 

Growing  Crops. — Growing  crops  are  in  many  re- 


spects treated  as  a  part  of  the  land  by  which  they  are  pro- 
duced*^ and  they  have  been  held  not  to  be  within  the  mean- 
ing of  a  statute  requiring  manual  delivery  of  goods  and 
chattels  as  against  creditors.^"  But  if  they  are  crops 
which,  although  the  product  of  the  soil,  are  also  the  result 
of  cultivation  and  annual  industry,  they  are  generally 
held  to  be  personal  property  so  far  as  to  come  within  the 
meaning  of  the  17th  section  of  the  Statute.^^ 

Rep.  50;  Webb  v.  Baltimore,  etc.,  49 — They  pass,  though  not  spe- 

R.  R.  Co.,  77  Md.  92;   39  Am.  St.  cifically  mentioned,  by  a  deed  to 

Rep.  396.  the  land.     Kammrath  v.  Kidd,  89 

43— 76  Wash.  6-00,  51  L.  R.  A.  (n.  Minn.   380,   99   Am.   St.   603;    Gib- 

s.)  398.  bons  v.  Dillingham,  10  Ark.  9;  Tur- 

44 — Gadsden  V.  Lance,  1  McMul-  ner  v.  Cool,  23  Ind.  56;    Smith  v. 

len's  Eq.   (S.  C.)   87,  37  Am.  Dec.  Leighton,  38  Kan.  544;  Wooton  v. 

548.  White,  90  Md.  64;  Jones  v.  Adams, 

45— Baldwin  V.  Williams,  3  Mete.  37  Ore.   473;    Mcllvain  v.   Harris, 

(Mass.)  365.  20  Mo.  457. 

46 — French  v.  Schoonmaker,  69  Centra,     Aldrlch     v.     Bank     of 

N.  J.  L.  6.  Ohiowa,  64   Neb.   276,   97   Am.   St. 

47 — Mayor    v.    Town    of    Harri-  643. 

son,   71  N.   J.  L.    69;    Canavan  v.  50— Bernal  v.   Havious,   17   Cal. 

City  of  Mechanicville,  229  N.  Y.  541,  79  Am.  Dec.  147;  Davis  v.  Mc- 

473,  128  N.  E.  882.  Farlane,  37  Cal.  634,  99  Am.  Dec. 

48 — Higgins     v.     Kusterer,     41  340. 

Mich.  318,  32  Am.  Rep.  160.  51— Mighell  v.  Dougherty,  86  la. 


246  THE  LAW  OF  SALES 
Trees,  etc. — Growing  things,  such  as  trees  and 


grass,  which  are  naturally  produced  by  the  soil,  and  things 
which  by  attachment  have  become  legally  part  of  the  soil, 
are  the  subject  of  very  much  confusion  in  the  cases. 
Section  4  of  the  Statute  of  Frauds  requires  sales  of 
land,  or  of  an  interest  in  land,  to  be  in  writing;  so  that 
growing  things  are  necessarily  covered  by  one  section  or 
the  other.  The  two  sections  do  differ,  however,  in  their 
requirements;  the  chief  distinction  being  that  under 
section  17  a  writing  is  not  necessary  if  there  has  been 
payment  of  part  of  the  price,  or  if  part  of  the  goods  have 
been  received  and  accepted.  Section  4  applies  to  every 
contract;  section  17  only  to  those  involving  a  certain 
value.  It  therefore  makes  a  material  difference  whether 
the  contract  comes  under  one  section  or  the  other. 

In  respect  to  matters  other  than  the  Statute  of  Frauds 
trees,  grass  and  fixtures  are  considered  as  real  estate 
so  long  as  they  are  a  part  of  the  land — that  is  to  say, 
while  they  are  still  growing  in  or  legally  attached  to  the 
soil.  But  when  severed  from  the  soil  they  at  once  become 
personal  property  in  and  of  themselves.  Trees  and 
grass  are  subjects  of  sale  irrespective  of  the  land, 
whether  they  are  still  growing  in  it  or  not.^^ 

Logically,  therefore,  a  sale  of  trees,  or  grass,  would 
seem  to  be  a  sale  of  real  estate,  or  a  sale  of  personal 
property,  according  as  it  contemplates  a  transfer  of  title 
to  the  trees  before  or  after  severance.    That  is,  a  trans- 

480,  41  Am.  St.  511;   Kingsley  v.  rated  from  the  rest  by  express  res- 

Holbrook,   45   N.   H.   313,   86   Am.  ervation  or  grant;  and  even  when 

Dec.  173,  dictum.  so  separated  it  retains  its  distinc- 

Growing  peaches,  to  be  picked  tive  character  as  an  incident  of 

by  the  buyer,  were  held  not  to  be  real  property  so  long  as  it  remains 

an  interest  in  land  in  Pumer  v.  uncut;  but  when  cut  and  severed 

Piercy,   40  Md.   212,  17  Am.  Rep.  from  the  soil,  it  becomes  personal 

591.  property,  to  which  title  may  be  ac- 

52 — "It  is  elementary  knowledge  quired,    as    in    the   case    of    other 

that  growing  timber  forms  a  part  chattels     *     *     *".      Emerson     v. 

of  the  realty,  and,  like  any  other  Shores,  95  Me.  237,  85  Am.  St.  404; 

part  of  the  estate,  may  be  sepa-  White  v.  Foster,  102  Mass.  378. 


THE  STATUTE  OF  FRAUDS  247 

fer  of  title  in  unsevered  trees  should  properly  be  a  sale 
of  a  part  of  the  realty ;  a  transfer  of  title  which  is  not  to 
take  place  until  after  the  trees  have  been  severed,  a  sale  of 
personalty.  The  fact  that  at  the  time  of  making  the  con- 
tract the  trees  are  uncut  should  not  logically  determine 
the  character  of  the  contract.  A  sale  of  false  teeth  to  be 
made  is  in  no  sense  a  sale  of  the  porcelain  and  rubber 
out  of  which  they  are  to  be  made ;  it  is  a  sale  of  the  teeth, 
or  else  a  mere  contract  for  w^ork  and  labor.  So,  a  con- 
tract for  the  transfer  of  title  to  severed  trees  is  not  prop- 
erly a  contract  for  the  sale  of  gromng  trees  out  of 
which  the  severed  trees  are  to  be  made. 

The  whole  matter,  however,  is  further  complicated  by 
a  preliminary  inquiry.  Does  the  Statute,  in  speaking  of 
contracts  for  the  sale  of  personalty,  mean  the  sale  of 
that  which  is  personalty  at  the  time  the  contract  is  en- 
tered into,  or  does  it  mean  the  sale  of  that  which  mil 
be  personalty  at  the  time  the  title  is  passed?  There  is 
no  definite  answer  to  this  in  the  decisions.  The  broadest 
analogies  indicate  the  latter  alternative.  But,  at  least, 
an  understanding  of  this  problem  is  a  help  in  under- 
standing the  decisions. 

The  intention  of  the  parties  as  to  whether  there  should 
vest  in  the  buyer  enforcible  legal  rights  in  and  to  the 
trees  before  they  are  cut  or  after  they  are  cut,  should 
be  determinative  of  whether  they  have  contemplated 
giving  the  buyer  an  interest  in  real  property  or  in  per- 
sonal property.  And  the  intention  of  the  parties  in  this 
respect  would  seem  to  be  indicated  by  whether  the  buyer 
is  expected  to  enter  and  cut  the  trees — in  which  case 
they  must  have  contemplated  that  he  should  have 
rights  in  the  growing  trees — or  w^hether  the  seller  is  to 
cut  them  before  the  buyer  can  act  in  regard  to  them. 

There  is  some  support  for  this  theoretical  test  in  the 
decisions — although  it  is  nowhere  expressed — ^but  not  a 
great  deal.  On  the  other  hand,  a  distinction,  or  test,  occa- 
sionally expressed,  but  not  more  precisely  followed,  is 


248 


THE  LAW  OF  SALES 


that  if  the  contract  contemplates  an  immediate  sever- 
ance of  the  trees  it  is  a  sale  of  personal  property,  and 
covered  by  the  17th  section  of  the  Statute,  while  if  it 
contemplates  that  the  trees  shall  be  left  to  grow  still  fur- 
ther it  is  a  sale  of  an  interest  in  realty. 

The  truth  is  that  courts  have  neither  expressed  nor 
intuitively  followed  any  consistent  rule  in  regard  to  such 
contracts.  As  one  court  expresses  the  matter,  "Whether 
the  sale  of  growing  trees  is  the  sale  of  an  interest  in  or 
concerning  land  has  long  been  a  much  controverted  sub- 
ject in  the  courts  of  England,  as  well  as  in  the  courts  of 
the  several  states  of  the  Union.  The  question  has  been 
differently  decided  in  different  jurisdictions,  and  by  dif- 
ferent courts,  or  at  different  times  by  the  same  court 
within  the  same  jurisdiction.  The  courts  of  England 
particularly  have  varied  widely  in  their  holdings  on  the 
subject. ' '" 


53— Hirth  v.  Graham,  50  O.  S. 
57,  40  Am.  St.  641.  No  attempt  is 
made  here  to  cite  the  holdings  of 
particular  states,  but  only  a  few 
representative  ones  on  either  side. 
Held,  contract  for  an  interest  in 
land:  Seymour  v.  Cuchway,  100 
Wis.  580,  69  Am.  St.  957,  buyer  to 
cut,  but  no  emphasis  laid  on  that 
fact;  Hirth  v.  Graham,  50  O.  S.  57, 
40  Am.  St.  641,  buyer  to  cut; 
Owens  V.  Lewis,  46  Ind.  488,  15 
Am.  Rep.  295,  buyer  to  cut;  Cool 
V.  Peters,  etc.  Co.,  87  Ind.  531,  buy- 
er to  cut;  Slocum  v.  Seymour,  36 
N.  J.  L.  138,  13  Am.  Rep.  432,  buyer 
to  cut;  Kingsley  v.  Holbrook,  45 
N.  H.  313,  id.;  Harrell  v.  Miller, 
35  Miss.  700,  72  Am.  Dec.  154,  id.; 
Mizell  V.  Burnett,  4  Jones  (N.  C.) 
249,  69  Am.  Dec.  744,  id.;  Fluharty 
V.  Mills,  49  W.  Va.  446,  id.;  Ala. 
Mineral  Land  Co.  v.  Jackson,  121 
Ala.  172,  77  Am.  St.  46. 

Held  not  an  interest  In  land: 


Emerson  r.  Shores,  95  Me.  237,  85 
Am.  St.  404,  buyer  was  to  cut; 
Marshall  v.  Green,  1  C.  P.  Div.  35, 
id.;  White  v.  Foster,  102  Mass.  378, 
unless  by  deed;  Ryasse  v.  Reese, 
4  Mete.  (Mass.)  372,  83  Am.  Dec. 
481,  because  "in  contemplation  of 
immediate  separation"  by  the 
buyer;  Smith  v.  Bryan,  5  Md.  141, 
59  Am.  Dec.  104,  buyer  to  cut; 
Leonard  v.  Medford,  85  Md.  666, 
37  L.  R.  A.  449,  on  ground  of  im- 
mediate separation  by  buyer; 
Robbins  v.  Farwell,  193  Pa.  37, 
idem;  Fish  v.  Cap  well,  18  R.  I. 
667,  49  Am.  St.  807;  Turner  v. 
Planter's  Lumber  Co.,  92  Miss.  767, 
131  Am.  St.  552,  seller  to  cut;  Kill- 
more  V.  Hewlett,  48  N.  Y.  S.  569, 
seller  to  cut. 

Sale  of  grass,  held  interest  in 
land:  Smith  v.  Leighton,  39  Kan. 
544,  5  Am.  St.  778,  buyer  to  cut; 
Ross  V.  Cook,  71  Kan.  117,  buyer 
to   cut;    Kirkeby  v.  EJrickson,   90 


THE  STATUTE  OF  FRAUDS        249 

Price. — The  original  statute  did  not  apply  to  every 
sale  of  goods,  but  only  to  those  contracts  in  which  the 
price  should  be  10  pounds  Sterling  or  upwards.  The 
majority  of  statutes  enacted  in  this  country  apply  only 
when  the  price  is  $50  or  more,  but  others  vary  as  to  the 
amount,  from  that  of  Florida,  which  applies  to  every 
contract,  to  that  of  Ohio,  which  applies  only  when  the 
price  is  $2,500  or  more. 

To  bring  a  contract  within  the  Statute  it  is  not  essen- 
tial that  the  price  of  any  one  thing  be  so  great  as  the 
amount  fixed  by  the  Statute,  or  that  a  price  so  great  as 
that  amount  be  expressly  stated  in  the  agreement.  It 
is  sufficient  if  the  amount  required  to  be  paid  by  the, terms 
of  any  one  contract  is  greater  than  the  amount  stated  in 
the  Statute.  As  illustration,^*  one  Allard  showed  samples 
of  women's  hats  to  Greasert  and  told  him  the  price  per 
dozen,  or  per  piece,  thereof  and  from  these  the  latter 
made  up  an  order  for  goods.  The  procedure  Avas  that 
Allard  showed  each  sample  in  turn  and  Greasert  either 
passed  it  by  or  ordered  one  or  more  like  it.  No  one  hat 
was  priced  at  more  than  $3.00  and  no  type  of  hat  was 
ordered  in  quantity  of  more  than  $24.00  worth.  The 
sum  total  of  the  order  came  to  more  than  the  amount 
named  in  the  Statute.  The  court  held,  on  trial  of  the  case, 
that  the  transaction  did  not  constitute  a  series  of  con- 
tracts for  each  hat  or  each  type  of  hat,  but  that  the 
entire  transaction  was  one  single  contract  for  all  the  hats 
at  the  total  price.^^ 

Minn.  299,  101  Am.  St.  411,  buyer  and  sizes  of  lumber  given  orally 

to  cut;    Crosby  v.   Wadsworth,   6  at  one  time;  Oilman  v.  Hill,  36  N. 

East  601.  H.  311;   Standard  Wall  Paper  Co. 

Not  an  interest  in  land.  Kreisle  v.  Towns,  72  N.  H.  324;  Brown  v. 

V.  Wilson,  —  Tex.  — ,  148  S.  W.  Snider,  126  Mich.  19S,  "The  author- 

1132,  buyer  to  cut.  ities   cited   undoubtedly   establish 

54 — Allard  v.  Greasert,  61  N.  Y.  the  proposition  that  because  a  sep- 

1;   citing  and  following  Baldey  v.  arate  price  was  agreed  upon  for 

Parker,  2  B.  &  C.  41.  each  article  of  merchandise,  or  be- 

55 — Accord,  Cooke  v.  Millard,  65  cause   some    of   the    articles    pur- 

N.  Y.  352,  order  for  various  kinds  chased  were  to  be  delivered  at  one 


250  THE  LAW  OF  SALES 

Even  if  the  total  amount  to  be  paid  under  the  contract 
is  not  known  at  the  time  it  is  entered  into,  the  agreement 
must  be  in  writing  if  events  ultimately  fix  the  price  at 
more  than  the  statutory  amount.  Thus,  a  contract  for  the 
sale  of  all  flax  to  be  raised  on  certain  land  at  $5.00  per 
ton  was  held  to  need  a  writing  in  view  of  the  fact  that  over 
20  tons  were  actually  raised.^^ 

The  great  difficulty  in  these  cases  is  to  know  when  a 
transaction  constitutes  one  single  contract  and  when  it 
amounts  to  several  related,  but  distinct,  contracts.  There 
appear  to  be  no  decisions  bearing  upon  that  point  where 
the  amount  of  the  price  has  been  the  one  particular  point 
involved.  There  are,  however,  a  number  of  illuminating 
opinions  upon  the  matter  of  single  or  several  contracts 
raised  by  the  question  of  what  delivery  and  acceptance 
will  suffice  to  make  a  contract  enforcible  despite  absence 
of  a  writing.  To  avoid  duplication  of  discussion  they 
are  not  cited  in  this  place,  but  reference  is  made  to  the 
discussion  under  that  topic. 

2.     Memorandum  Requieed  by  the  Statute, 

The  writing  required  by  the  Statute  is  some  note  or 
memorandum  of  the  bargain,  signed  by  the  parties  to 
be  charged  or  their  agents  thereunto  lawfully  authorized. 

Character  of  the  Memorandum. — It  is  inunaterial  when 
the  writing  is  made,  so  long  as  it  represents  the  terms 
of  the  real  agreement.^''^ 

No  formality  in  the  written  instrument  is  required. 
Any  kind  of  a  writing  which  sufficiently  sets  out  the 
terms  of  the  contract  and  is  properly  signed  is  sufficient. 

time  and  some  at  another,  it  would  following  Watts  v.  Friend,  10  B.  & 

not  follow  that  the  transaction  was  C.  446;  Carpenter  v.  Galloway,  73 

not  a  single  transaction,  constitut-  Ind.  418. 

Ing  but  one  contract."  57 — Emery  v.   Boston  Terminal 

56— Brown  v.  Sanborn,  21  Minn.  Co.,  178  Mass.  172,  86  Am.  St.  473, 

402;   Bowman  v.  Conn.  8  Ind.  58,  dictum. 


THE  STATUTE  OF  FRAUDS        251 

Even  a  telegram  is  sufficient  as  a  writing — although  the 
original  copy,  signed  by  the  party  in  person,  is  not  pro- 
duced.^* 

Purpose  of  the  Memorandum. — The  purpose  for  which 
the  writing  was  made  is  likewise  immaterial.  Thus,  a 
memorandum  made  by  a  party  solely  for  his  own  use  and 
never  shown  to  the  other  party  is  sufficient  if  the  other 
party  learns  of  it  in  time  to  compel  its  production  in  evi- 
dence. ''There  is  no  evidence,"  said  the  court  in  one 
case,^^  ''that  this  note  was  ever  seen  by  the  appellee 
(plaintiff)  or  even  its  existence  known  to  him  until  the 
trial;  and  it  certainly  never  was  delivered  to  him,  or 
went  out  of  the  possession  of  the  appellants,  until  pro- 
duced in  court.  *  *  *  The  Statute  was  passed  *  *  * 
to  prevent  the  defendant  from  suffering  loss,  upon  the 
parole  testimony  of  either  a  perjured  or  mistaken  wit- 
ness. *  *  *  It  made  the  defendant  only  liable  when  a 
note  or  memorandum  of  the  bargain  signed  by  himself 
was  produced  at  the  trial.  If  produced  from  the  defend- 
ant's own  custody,  it  guards  against  the  mischief  that 
the  Statute  w^as  passed  to  prevent,  just  as  well  as  if  pro- 
duced from  the  custody  of  the  plaintiff. '  '^° 

Even  a  letter  stating  that  the  writer  will  not  be  bound 
by  his  contract  is  sufficient  if  it  incidentally  sets  out 
the  terms  of  the  contract.^^  But  of  course  a  letter  deny- 
ing that  any  contract  was  ever  entered  into  would  not  be 
a  memorandum  of  a  contract  even  though  it  might  set 
out  the  terms  of  an  alleged  contract.^^ 

58 — Brewer  v.  Harst-Lachmund  59 — Drury  v.  Young,  58  Md.  546, 

Co.,  127  Cal.  240,  50  L.  R.  A.  240,  42  Am.  Rep.  343. 

annotated;  Dunning  v.  Roberts,  35  60 — Accord,    The   Argus    Co.    v. 

Barb.  (N.  Y.)  463.  Mayor,  etc.,  55  N.  Y.  495,  minutes 

Minute  book,  The  Argus  Co.  v.  of  a  meeting;  Johnson  v.  Dodgson, 

Mayor,  etc.,  55  N.  Y.  495.  2  M.  &  W.  653. 

Letter  by  defendant  to  a  third  61 — Drury  v.  Young,  58  Md.  546, 

person,  Marks  v.  Cowdin,  226  N.  42  Am.  Rep.  343. 

Y.  138,  62— Wilson  v.  Lewiston  Mill  Co., 

150  N.  Y.  314,  55  Am.  St.  680. 


252 


THE  LAW  OF  SALES 


Signature. — The  Statute  requires  that  the  memoran- 
dum be  signed  by  the  party  to  be  charged  or  by  his 
agent.  Even  a  memorandum  made  entirely  in  the  hand- 
writing of  the  party  to  be  cliarged  is  not  sufficient  if 
not  signed  by  him.^^ 

The  signature,  however,  need  not  be  at  the  end  of  the 
memo  r  andum.^* 

Neither  need  it  be  the  full  name  of  the  party  to  be 
charged.  The  function  of  the  signature  required  by 
the  Statute  is  undoubtedly  for  the  verification  of  the 
writing  and  ''signed"  has  therefore  been  given  its  broad 
literal  meaning,  to  make  a  distinguishing  mark,  or  mani- 
festation. *'It  is  hardly  necessary  to  add  that  the  signa- 
ture is  valid  and  binding,  though  made  with  the  initials 
of  the  party  only. '  '^^  A  letter  signed  with  only  the  Chris- 
tian name  of  the  writer  has  been  held  sufficient  as  a 
written  memorandum.®^ 


63— Selby  v.  Selby,  3  Meriv.  2; 
Watson  V.  Winston,  (Tex.)  43  S. 
W.  852;  Copehart  v.  Hale,  6  W.  Va. 
547;  Newby  v.  Rogers,  40  Ind.  9, 
even  a  writing  signed  by  the  plain- 
tiff and  produced  from  the  custody 
of  the  defendant  is  not  suflScient. 
"When  the  statute  spealis  of  'the 
party  to  be  charged'  it  must  be  un- 
derstood to  mean  the  defendant  to 
the  action.  The  note  or  memoran- 
dum must  be  signed  by  him." 

It  is  not  necessary  that  it  be 
signed  by  both  parties,  Newby  v. 
Rogers,  40  Ind.  9;  First  Presby- 
terian Church  V.  Swanson,  100  III. 
Ap.  39;  Bowers  v.  Whitney,  88 
Minn.  168;  Bristol  v.  Mente,  80  N. 
Y.  S.  52,  178  N.  Y.  599;  Dennis 
Simmons  Co.  v.  Corey,  140  N.  C. 
462,  6  L.  R.  A.  (n.  s.)  468;  Wil- 
liams V.  Robinson,  73  Me.  186,  40 
Am.  Rep.  352;  Knapp  v.  Beach, 
52  Ind.  Ap.  573. 


Contra,  Wilkinson  v.  Heaven- 
rich,  58  Mich.  574,  55  Am.  Rep.  708. 

64 — Drury  v.  Young,  50  Md.  542, 
42  Am.  Rep.  343;  Merritt  v.  Cla- 
son,  12  Johns.  (N.  Y.)  102,  7  Am. 
Dec.  286. 

But  the  statutes  of  some  states 
require  the  memorandum  to  be 
"subscribed." 

65 — Sanborn  v.  Flagler,  9  Allen 
(Mass.)  474;  Salmon  Falls  Mfg. 
Co.  v.  Goddard,  14  How.  446. 

66— Walker  v.  Walker,  175  Mass. 
349. 

Cf.  Zann  v.  Haller,  71  Ind.  136, 
36   Am.    Rep.   193. 

Defendant's  "Mark"  is  sufficient. 
Foye  V.  Patch,  132  Mass.  405;  Sym- 
bols, Brown  v.  Butcher's  Bk.,  6 
Hill  (N.  Y.)  443,  41  Am.  Dec.  755, 
indorsement  on  a  negotiable  in- 
strument. 


THE  STATUTE  OF  FRAUDS        253 

The  character  and  medium  with  which  the  signing  is 
done  is  also  not  material.  Thus  it  is  a  sufficient  signing 
although  the  signature  be  made  mth  a  pencil,*''  or  by 
means  of  a  rubber  stamp. *^ 

As  the  purpose  of  the  signed  writing  is  to  show  that 
the  particular  contract  alleged  was  made  by  the  particular 
defendant  it  is  fair  to  assume  that  the  primary  purpose 
of  the  signature  is  to  connect  the  defendant  mth  the 
writing.  Theoretically,  therefore,  the  signature  should 
have  some  characteristic  as  a  signature — distinct  from 
a  name — ^by  which  to  identify  the  signer.  It  should  be 
his  owii  chirography,  for  instance,  or  that  characteristic 
of  his  agent.  Practically,  however,  it  is  not  at  all  essen- 
tial that  the  signature  be  characteristic  of  the  defendant 
beyond  the  fact  that  it  is  his  name.  A  signature  made 
by  a  rubber  stamp,  for  instance,  even  though  affixed  by 
an  agent,  is  held  to  supply  the  requirements  of  the 
Statute,  without  any  indication  in  the  decisions  that  it 
should  be  a  facsimile  of  the  party's  own  handw^riting.*^ 
Likewise,  a  name  printed  by  means  of  a  typewriter  has 
been  held  a  sufficient  ''signing"  of  the  instrument,  al- 
though it  was  certainly  in  no  way  inherently  character- 
istic of  the  party  to  be  charged."''*'  Courts  have  even  gone 
so  far  as  to  hold  that  the  name  of  a  party  printed  on  a 
paper  prior  to  the  making  of  the  contract  afterward 
evidenced  by  the  paper  is  a  sufficient  ''signing.'"^     In 

67— Merritt  v.  Clason,  12  Johns.  Y.  S.  780;  Garton  Toy  Co.  v.  Bus- 

(N.   Y.)   102,  7  Am.  Dec.   286;    14  weU  Lumber  Co.,  150  Wis.  341. 

Johns.  (N.  Y.)  484;  Myers  v.  Van-  71— Goldowitz  v.  Kupfer  &  Co., 

derbelt,  84  Pa.  510.  141   N.    Y.    531,   name   printed   at 

68 — Streff  v.  Colteaux,  64  HI.  Ap.  bottom    of    a    circular    containing 

179;    Deep  River  Bank's  App.,  73  the  terms  of  a  contract  alleged  to 

Conn.  341.  have  been  made  afterward;  Ham- 

69 — Deep    River    Bank's     App.,  ilton  v.   State,  103  Ind.   96,  name 

73   Conn.  341;    Streff  v.  Colteaux,  of  prosecuting  attorney  printed  at 

64   111.   Ap.   179,   "It  is   ordinarily  bottom  of  a  blank  form  on  which 

the  act  of  making  a  paper  one's  an   indictment  was   later   written 

own  that  is  important,  rather  than  held  a  signature, 

the  manner  of  so  doing."  The  fact  that  the  signature  was 

70 — Landecker  v.  Bank,  130  N.  made     before    the     contract    was 


254  THE  LAW  OF  SALES 

Drury  v.  Young'^  a  memorandum  was  held  to  be  duly 
signed  by  the  defendant  although  the  instrument  had 
never  been  delivered  to  the  plaintiff  and  the  defendant's 
name  appeared  on  it  only  in  the  form  of  a  printed  letter- 
head, at  the  top  of  the  paper. 

These  cases,  although  undoubtedly  accepted  as  author- 
ity, are  scarcely  within  the  rule  laid  down  in  McMillen 
V.  Terrell,  '^  as  follows:  "The  law  does  not  prescribe 
the  particular  place  where  the  obligor's  name  must  be 
placed ;  it  may  be  at  the  beginning,  or  in  the  body,  at  the 
close  or  perhaps  on  the  margin  of  the  instrument;  but 
wherever  placed,  it  must  be  done  with  the  intention  of 
thereby  executing  it  as  the  obligation  of  the  party  so 
signing  it.  If  the  signature  is  placed  at  the  close,  at 
the  ordinary  place  of  signature,  the  inference  is  that  it 
was  so  placed  as  the  final  execution  of  the  instrument. 
This  inference,  however,  does  not  necessarily  arise  where 
the  name  is  found  at  the  commencement  or  in  the  body. 
In  such  case  there  should  be  some  evidence,  either  in 
the  form  of  the  instrument  or  the  circumstances  attend- 
ing the  signature,  showdng  that  it  was  the  intention  of 
the  party  thereby  to  execute  it.  *  *  *  The  Statute  is 
plain  and  unequivocal,  and  should  not  be  evaded  by 
judicial  refinement,  but  should  be  so  administered  as  to 
subserve  the  purpose  for  which  it  was  enacted." 

Signing  by  Agent. — The  signing  may  be  done  by  an 


agent  of  the  party,  as  is  indicated  by  many  of  the  cases 
already  discussed.  This  is  in  accord  with  the  specific 
provision  of  the  Statute.  It  ordinarily  appears  that 
the  party's  own  name  was  signed  by  the  agent — as,  for 
instance,  in  using  a  rubber  stamp — and  such  signing  is 
effective  whether  the  agent  appends  also  his  own  name  as 
agent  or  not.     But  a  signing  by  the  agent  of  his  own 

drawn  has  been  held  to  be  no  bar  But  contra,  Hodgkins  v.  Bond,  1 

to  its  effectiveness.     Ulen  v.  Kit-  N.  H.  284. 

tredge,  7  Mass.  233;  Underwood  v.  72—50  Md.  542,  42  Am.  Rep.  343. 

Hossack,  38  111.  208.  73—23  Ind.  163. 


THE  STATUTE  OF  FRAUDS        255 

name  only,  without  writing  that  of  his  principal,  is  suf- 
ficient to  charge  the  principal  if  he  be  otherwise  shown 
by  the  contract  as  the  person  concerned.'''* 

The  party  claiming  under  the  contract,  however,,  can 
not  himself  be  an  agent  for  the  party  to  be  charged  so 
as  to  sign  for  the  latterJ^ 

Separate  Papers. — "When  the  memorandum  consists  of 
several  separate  pieces  of  paper  it  is  not  essential  that 
they  all  be  signed  by  the  party  to  be  charged.  It  is  suf- 
ficient if  the  ''memorandum"  be  signed. 

That  the  ' '  memorandum ' '  may  consist  of  several  sepa- 
rate and  distinct  documents  is  well  settled.  There  must 
be  some  connection  between  the  various  unsigned  papers 
and  the  one  on  which  the  signature  appears,  but  this  con- 
nection may  be  either  physical  or  through  relation  of 
the  contents. 

As  a  physical  connection  it  need  not  be  a  fixed  one. 
A  letter  and  the  envelope  in  w^hich  it  was  sent,  for 
instance,  are  sufficiently  connected  to  be  used  together 
as  constituting  the  memorandum.'''^  In  another  case  two 
documents,  neither  of  which  by  itself  was  a  sufficient 
memorandum,  were  read  in  connection  one  with  the  other 

74— Haskell    v.    Tukesbury,    92  son  v.  Buck,  35  N   J.  338,  10  Am. 

Me.   551,  69  Am.  St.   529,  quoting  Rep.    243;    but   inasmuch   as   one 

from  Union  Bk.  v.  Coster,  3  N.  Y.  party  to  the  contract  can  not  sign 

203,   53   Am.   Dec.   280,   "The   pro-  as  agent  of  the  other  party  so  as 

visions  of  the  Statute  are  complied  to  satisfy  the  statute,  an  auction- 

with  if   the   names   of  competent  eer  who  has  himself  an  interest 

contracting  parties  appear  in  the  in  the  sale  can  not  sign  as  agent 

writing,   and,   if  the  party  be   an  of  the  other  party.  Bent  v.  Cobb, 

agent,  it  is  not  necessary  that  the  9  Gray   (Mass.)   397,  69  Am.  Dec. 

name  of  the  principal  shall  be  dis-  295;    Tull   v.   David,   45   Mo.    445, 

closed  in  the  writing."  Kingsley  v.  lOO  Am.  Dec.  385. 
Siebrecht,   92  Me.   23,   69  Am.   St. 
486;  White  v.  Dahlquist  Mfg.  Co., 


75 — Witson  v.  Lewiston  Mill  Co., 


179  Mass.  427;   Brodhead  v.  Rein-     ^^O  N.  Y.  314,  55  Am.  St.  680;  John- 
bold,  200  Pa.  618,  86  Am.  St.  735.        «°^  ^-  B"«^'  ^5  N.  J.  338,  10  Am. 


Rep.   243 

76— Pe 
memorandum  is  concerned.   John-      Q.  B.  688 


An  auctioneer  may  be  agent  of 
both  parties,  so  far  as  signing  the  76 — Pearce  v.  Gardner  [1897]  1 


256  THE  LAW  OF  SALES 

because  they  had  been  pinned  together  at  the  time  of 
sale.''^'''  A  writing  on  an  unsigned  leaf  of  a  book  was 
treated  as  a  sufficient  memorandum  because  of  the  signa- 
ture on  the  leather  folder  in  which  it  was  kept.''^^ 

Relation  of  Papers. — When  separate  documents  are 


allowed  to  be  read  together  because  of  the  relation  of  the 
subject  matter,  there  is  generally  a  specific  reference  in 
the  signed  paper  to  the  unsigned  one.  This  reference, 
however,  need  not  be  specific  nor  even  apparent  from  a 
mere  reading  of  the  document.  It  is  sufficient  if  there  is 
in  fact  a  reference  when  the  meaning  of  the  document  is 
explained.'''® 

Thus,  in  Beckwith  v.  Talbot®"  a  written  agreement  had 
been  signed  by  the  plaintiff  but  not  by  the  defendant. 
But  the  defendant  had  signed  certain  letters  in  which 
he  several  times  referred  to  ' '  the  agreement. ' '  The  court 
held  that  there  was  a  memorandum  signed  by  the  defend- 
ant, saying,  "What  agreement  could  he  possibly  refer  to 
but  the  only  one  which,  so  far  as  appears,  was  ever 
made.  *  *  *  It  is  undoubtedly  a  general  rule  that  col- 
lateral papers,  adduced  to  supply  the  defect  o-f  signature 
of  a  written  agreement  under  the  Statute  of  Frauds, 
should  on  their  face  sufficiently  demonstrate  their  refer- 
ence to  such  agreement  without  the  aid  of  parole  proof. 
But  the  rule  is  not  absolute.  There  may  be  cases  in 
which  it  would  be  a  violation  of  reason  and  common  sense 
to  ignore  a  reference  which  derives  its  significance  from 
such  proof.  If  there  is  ground  for  any  doubt  in  the 
matter,  the  general  rule  should  be  enforced.    But  where 

77 — Tallman  v.  Franklin,  14  N.      Cal.    Ap.    782;     Leesley    Bros.    v. 
Y.  587.  Fruit  Co.,  162  Mo.  Ap.  195,  no  ref- 


erence by  one  to  the  other  at  all. 
Allen  V.  Burnett,  92  S.  C.  95;  Poel 
V.  Brunswick,  etc.  Co.,  144  N.  Y. 
S.  725,  even  though  the  second  one 
purports  to  be  a  repudiation  of  the 
79— Willis  V.  Ellis,  98  Miss.  197;      other. 


78— Jones  v.  Joyner,  82  L.  T.  (n. 
8.)  768.  See  also  Jelks  v.  Barrett, 
52  Miss.  315.  But  compare,  Wil- 
stoch  V.  Heyd,  122  Ind.  574. 


Albion   Lumber  Co.  v.  Lowell,   20  80—95  U.  S.  289. 


THE  STATUTE  OF  FRAUDS        257 

there  is  no  ground  for  doubt,  its  enforcement  would  aid, 
instead  of  discouraging,  fraud.  "^^ 

But  to  the  extent  that  a  reference  is  necessary,  the 
reference  must  appear  from  the  document  itself.  The 
fact  that  they  do  refer  to  the  same  subject  matter 'and 
are  in  fact  supplementary  can  not  be  shown  by  extraneous 
evidence;,  the  relationship  must  appear  from  the  face 
of  the  documents.  "If  it  be  necessary  to  adduce  parole 
evidence,  in  order  to  connect  a  signed  paper  with  others 
unsigned,  by  reason  of  the  absence  of  any  internal  evi- 
dence in  the  signed  paper  to  show  a  reference  to,  or  con- 
nection with  the  unsigned  papers,  then  the  several  papers 
taken  together  do  not  constitute  a  memorandum  in  writ- 
ing of  the  bargain,  so  as  to  satisfy  the  statute."^'' 

This  latter  statement  and  the  decisions  in  accord  with 
it  are  not  precisely  in  harmony  with  the  decision  in  Beck- 
with  v.  Talbot,  supra.  The  difference,  however,  seems 
to  be  less  in  the  law  than  in  the  application.  The  cases 
are  agreed  that  separate  documents  can  not  be  used  as 
one  memorandum  if  extraneous  evidence  is  necessary  to 
show  their  connection.^^  On  the  other  hand,  it  is  settled 
that  parole  evidence  may  be  received  as  a  means  of  inter- 
pretation of  the  expressions  used  in  the  writing.  If, 
when  so  explained  and  interpreted,  the  language  of  one 
document  clearly  relates  to  another,  that  other  may  be 
used  in  connection  with  it,  even  though  the  language 
when  unexplained  shows  no  apparent  connection.  This 
is  the  doctrine  of  Beckwith  v.  Talbot.  The  court  allowed 
the  phrase  "the  agreement"  to  be  explained  by  parole 
evidence.  When  so  explained,  it  clearly  related  to  the 
other  paper,  in  the  opinion  of  the  court.®*    The  conflict 

81— Ryan  v.  United  States,  136  66  Ga.  338,  42  Am.  Rep.  72. 

U.  S.  68;   Little  v.  Dougherty,  11  83— Johnson   v.   Buck,   35   N.   J. 

Colo.  103;  Coe  v.  Tough,  116  N.  Y.  338,  10  Am.   Rep.   243;    Thayer  v. 

273;   Marks  v.  Cowdin,  226  N.  Y.  Luce,  22  O.  S.  62. 

138.  84— Wilkinson    v.    Taylor    Mfg. 

82— North  v.  Mendel,  73  Ga.  400,  Co.,    67    Miss.    231;     Bauman    v. 

54  Am.  Rep.  879;  Smith  v.  Jones,  James,  3  Ch.  508. 


258  THE  LAW  OF  SALES 

between  various  decisions  is  largely  due  to  the  lack  of 
any  standard  as  to  when  the  relationship  is  sujjiciently 
indicated  by  the  language  of  instruments. 

There  are  many  decisions,  however,  to  the  effect  that 
no  reference  by  one  document  to  the  other  is  necessary 
at  all  if  from  their  contents  it  can  be  said  that  they  ob- 
viously relate  to  the  same  subject  matter.  In  Brewer  v. 
Horst-Lachmund  Co.^^  the  only  writing  was  in  the  form  of 
two  telegrams,  neither  of  which  referred  to  the  other  and 
neither  of  which  alone  was  a  sufficient  memorandum. 
The  court  allowed  them  to  be  used  together  because  * '  on 
their  face,  the  last  one  was  sent  to  the  plaintiff  in  response 
to  the  first."  Similarly,  in  Lerned  v.  Wannemacher^^ 
there  were  two  identical  written  statements  of  a  sale  of 
coal.  Each  one  showed  all  the  terms  of  the  contract, 
except  the  names  of  the  parties.  One  paper  was  signed 
by  the  plaintiff  and  the  other  by  the  defendant.  Thus 
one  paper  showed  the  name  of  the  seller,  the  other  the 
name  of  the  buyer.  There  was  no  reference  in  either  to 
the  other.  Nevertheless  the  court  allowed  the  two  to  be 
read  together,  whereby  the  entire  contract  was  shown.®'' 

Contents  of  Memorandum. — As  to  the  contents  of  the 
memorandum,  the  law  is  more  simple  and  definite  than  the 
apparent  confusion  in  its  application  indicates.  The  rule 
is  simply,  that  the  memorandum  must  show  the  terms 
of  the  contract.  It  is  not  sufficient  for  the  memorandum 
to  show  that  some  contract  was  entered  into ;  it  must  show 
what  that  contract  was}^ 

85 — 127  Cal.  643,  50  L.  R.  A.  240.  to  the  other  need  not  be  made,  if, 

86 — 9  Allen  (Mass.)  412.  by  inspection  and  comparison,   it 

87 — Leesley  Bros.  v.  Fruit  Co.,  appears  that  they  severally  relate 

162  Mo.  Ap.   195;    Peyck  Bros.  v.  to,  and  form  a  part  of,  the  same 

Ahrens,  98  Mo.  Ap.  456,  "If  some  transaction."     Welsh  v.  Brainerd, 

only  of  the  writings  be  signed,  ref-  95  Minn.  234;  Gaines  v.  McAdam, 

erence  must  specifically  be  made  79    111.    Ap.    201;    Crystal    Palace 

therein  to  those  which  are  not  so  Flouring    Co.     v.     Butterfield,    15 

signed.     But   if  each  of  the   writ-  Colo.  Ap.  246. 
IngB  be  80  signed,  such  reference  88 — "The  note  or  memorandum 


THE  STATUTE  OF  FRAUDS        259 

Names  of  Parties. — The  parties  involved  in  the  con- 
tract must  be  shown  by  the  writing,  else  it  does  not  of 
itself  show  a  contract.  '*It  takes  two  parties  to  make 
a  contract;  and  a  writing  which  names  only  one  party, 
and  does  not  in  any  manner  indicate  who  the  other  party 
is,  does  not  set  forth  a  contract.  It  is  well  established 
that  where  the  statute  requires  the  contract  to  be  in  writ- 
ing there  can  be  no  binding  contract  unless  both  parties 
thereto  are  named  in  the  writing,  or  so  described  therein 
as  that  they  may  be  identified. ' '®® 

Consideration. — For  the  same  reason,  the  consid- 
eration must  be  sho^vn.  Without  consideration  there  can 
be  no  contract,  and  a  writing,  therefore,  which  states  no 
consideration  states  no  contract.  It  does  not  matter 
that  there  was  in  fact  a  consideration,  any  more  than 
it  matters  that  there  was  in  fact  a  contract.  The  writing 
must  do  more  than  merely  indicate  that  there  was  a 
contract;  it  must  show  what  that  contract  was.  How- 
ever we  may  define  ^'contract"  in  other  relations,  in  this 
connection  the  ''contract"  is  not  the  promise  alone;  it 
is  the  promise  and  the  consideration.  Hence,  a  writing 
which  does  not  show  the  consideration  as  well  as  the 
promise  does  not  show  the  contract  and  is  insufficient 
to  satisfy  the  Statute.®'' 

*  *  *  must  disclose  with  sub-  v.  Siebrecht,  92  Me.  23,  69  Am.  St. 
stantial  accuracy  every  fact  ma-  486.  If  the  signer  appears  as  an 
terial  to  constitute  a  contract  of  agent  only,  with  no  personal  lia- 
bargain  and  sale.  It  is  therefore  bility,  the  principal's  name  must 
essential  that  such  a  note  or  mem-  also  appear  somewhere;  the  mem- 
orandum shall  contain  within  it-  orandum  must  name  someone  who 
self  a  description  of  the  property  is  liable,  Langstroth  v.  J.  C.  Tur- 
agreed  to  be  sold  by  which  it  can  ner  Co.,  148  N.  Y.  S.  224. 
be  known  or  identified,  of  the  price  90 — Rains  v.  Patton,  191  Ala. 
to  be  paid  for  it,  of  the  party  who  349;  Kemensky  v.  Chapin,  193 
sells  it,  and  of  the  party  who  buys  Mass.  500;  Am.  Iron  &  Steel  Co.  v. 
it."  Am.  Iron  &  Steel  Co.  v.  Mid-  Midland  Steel  Co.,  101  Fed.  200; 
land  Steel  Co.,  101  Fed.  200.  Carter  v.  Timber  Co.,  184  Mo.  Ap. 
89 — Ogelesby  Co.  v.  Williams  523,  "In  determining  the  sufficiency 
Co.,  112  Ga.  359;  Darnell  v.  Laf-  of  a  writing  to  evidence  a  con- 
lerty,  113  Mo.  Ap.  282;   Kingsley  tract  within  the  Statute  of  Frauds 


260 


THE  LAW  OF  SALES 


The  memorandum  need  not  state  anything  more  than 
was  included  in  the  contract  itself.  The  place  or  time  of 
delivery,  for  instance,  are  not  essential  to  be  determined 
upon  in  an  oral  contract.  A  contract  in  which  that 
matter  has  been  quite  ignored  by  the  parties  is  quite 
enforcible.  Therefore,  if  such  matters  have  not  been 
included  in  the  contract  the  memorandum  need  not  con- 
tain anything  in  regard  to  them.^^ 

But,  on  the  other  hand,  it  is  not  sufficient  that  the  mem- 
orandum merely  show  a  contract.  It  must  show  the  con- 
tract on  which  suit  is  brought.  And,  inasmuch  as  the 
party  sued  can  use  oral  evidence  to  disprove  the  making 
of  the  contract  as  alleged  in  the  suit,  this  means  that 
the  memorandum  must  show  the  contract  actually  made.®^ 

Accordingly,  if  terms  as  to  time  of  delivery  and  the 
like,  although  not  necessary  to  a  valid  contract,  have  in 
fact  been  agreed  upon,  the  memorandum  is  not  sufficient 
unless  it  does  show  such  terms.®^ 


there  are  three  essential  and  nec- 
essary ingredients.  (1)  the  par- 
ties, (2)  the  subject  matter,  and 
(3)  the  consideration  or  price. 
Where  the  writing  lacks  any  of 
these  essential  elements  there  is 
no  enforcible  contract."  Booth  v. 
A.  Levy,  etc.  Co.,  21  Cal.  Ap.  427; 
Glasgow  Milling  Co.  v.  Burgher, 
122  Mo.  Ap.  14;  Rigby  v.  Gaymon, 
95  S.  C.  489. 

91— Willis  V.  Ellis,  98  Miss.  197; 
Crosby  v.  Bouchard,  82  Vt.  66; 
Darnell  v.  Lafferty,  113  Mo.  Ap. 
282.  If  the  contract  itself  gives 
the  buyer  a  choice,  the  memoran- 
dum need  not  be  more  explicit. 
Am.  Iron  &  Steel  Co.  v.  Midland 
Steel  Co.,  101  Fed.  200.  If 
price  is  left  to  future  determina- 
tion, memorandum  need  not  show 
more.  Booth  v.  A.  Levy  etc.  Co., 
21  Cal.  Ap.  427. 


92 — "It  is  not  sufficient  that  the 
note  or  memorandum  may  express 
the  terms  of  a  contract.  It  is  es- 
sential that  it  shall  completely  evi- 
dence the  contract  which  the 
parties  made.  If  instead  of  prov- 
ing the  existence  of  that  contract, 
it  *  *  *  evidenced  a  contract  in 
terms  and  conditions  different 
from  that  which  the  parties  en- 
tered into,  it  fails  to  comply  with 
the  statute."  Poel  v.  Brunswick- 
Balke-Collender  Co.,  216  N.  Y.  310. 

"It  becomes  necessary  then  to 
examine  and  ascertain  what  are 
the  essential  terms  of  this  con- 
tract before  we  can  pass  upon  the 
question  of  whether  the  memoran- 
dum is  sufficient  to  assert  itself 
without  parole  evidence."  Darnell 
V.  Lafferty,  113  Mo.  Ap.  282. 

93 — Arky  v.  Commission  Co., 
185  Mo.  Ap.  241;  Crosby  v.  Bouch- 
ard, 82  vt.  66. 


THE  STATUTE  OF  FRAUDS        261 

Subject  Matter  of  the  Contract. — The  promise  of 

the  seller  is  the  consideration  for  the  promise  of  the  buyer. 
Therefore,  under  the  foregoing  rule,  the  seller's  promise 
as  well  as  that  of  the  buyer  must  appear  in  the  writing. 
And  as  the  seller's  promise  is  to  convey  title  to  some 
thing,  what  that  thing  is  must  be  shown  by  the  memo- 
randum.^* 

Self-Explanation  of  the  Memorandum. — None  of  these 
essentials,  however,  need  be  stated  with  such  fullness  and 
precision  as  to  be  at  once  intelligible  to  any  reader.  A 
memorandum  written  in  Russian  would  undoubtedly  be 
sufficient  though  not  intelhgible  to  the  average  American. 
One  phrased  in  the  technical  idiom  of  a  particular  trade 
would  suffice  if  accurately  translatable  to  a  court,  though 
unintelligible  to  the  unlearned  reader.  Similarly,  a  mem- 
orandum which  has  a  precise  and  definite  meaning  to 
one  who  is  acquainted  with  the  facts  surrounding  the 
transaction  is  sufficient,  even  though  it  be  unintelligible 
to  one  unfamiliar  with  the  circumstances.  *'It  is  always 
permissible  to  show  the  surroundings  and  circumstances 
of  the  contract  and  it  is  sufficient,  as  against  the  Statute 
of  Frauds,  that,  after  the  court  is  put  in  the  same  posi- 
tion as  the  parties  themselves,  the  terms  and  subject  mat- 
ter of  the  contract  are  made  certain. '  '^^ 

94— Carter  v.   Timber  Co.,   184  494.  Accord,  Bowers  v.  Ocean  Acci- 

Mo.   Ap.    523.  dent  Co.,  97  N.  Y.  S.  485,  Affd.  187 

95— Carter  v.   Timber   Co.,   184  N.  Y.  561;  Flash  v.  Rossiter,  102  N. 

Mo.  Ap.  523.  Y.  S.  449;  Bank  v.  Securities  Co., 

The  description  of  the  subject  141  Mo.  Ap.  524;  Moses  Co.  v.  Stack- 
matter  need  not  be  explicit  on  the  Gibbs  Co.,  56  Wash.  529;  Haskell 
face  of  the  memorandum  if  it  can  v.  Tukesbury,  92  Me.  551,  69  Am. 
be  made  so  by  a  showing  of  the  St.  529;  In  Darnell  v.  Lafferty,  113 
circumstances.  Thus,  a  "memo-  Mo.  Ap.  282,  the  court  said,  "It 
randum  of  sale  of  stock  of  W.  C.  must  be  remembered  that  however 
C."  was  held  suflBcient  when  inter-  minute  and  precise  in  the  matter 
preted  through  extrinsic  evidence  of  detail  a  description  may  be,  that 
to  m.ean  that  stock  of  W.  C.  C.  in  the  last  analysis,  resort  must  be 
which  the  seller  had  authority  to  had  to  parole;  that  the  last  and 
sell,  Willett  v.   Smith,  214   Mass.  final    step   in   all   transactions   of 


262 


THE  LAW  OF  SALES 


3.     Satisfaction  of  the  Statute  by  Acceptance  and 
Receipt  of  the  Goods 

If  there  is  no  memorandum,  the  Statute  nevertheless 
allows  the  contract  to  be  enforced  if  **the  buyer  shall 
accept  part  of  the  goods  so  sold  and  actually  receive  the 
same. ' ' 

''Receive''  and  "Accept"  Do  Not  Relate  to  Title.— 
In  connection  with  this  proposition  it  should  be  borne  in 
mind  that  the  Statute  of  Frauds  has  nothing  to  do  di- 
rectly with  title.  The  fact  that  a  buyer  has  title  will  avail 
him  little  if,  because  of  the  Statute,  he  can  not  prove  the 
contract  through  which  he  claims  it.  On  the  other  hand, 
the  Statute  may  preclude  his  proving  even  a  wholly  ex- 
ecutory contract  to  sell,  since,  as  we  have  seen,  the  Statute 
is  held  to  apply  to  executory  contracts  as  well  as  to  ex- 
ecuted ones.    Therefore,  cases  involving  **  delivery  and 


this  kind  is  the  process  of  identi- 
fication, and,  if  perchance  a  con- 
troversy arise,  resort  must  event- 
ually be  had  to  parole  evidence  to 
fit  even  the  most  detailed  and 
minute  description  to  the  thing  de- 
scribed. *  *  *  Under  the  rule 
above  stated,  the  language  em- 
ployed, 'ten  head  of  cows  and 
heifers'  being  applicable  to  sev- 
eral head  of  cows  and  to  several 
head  of  heifers,  it  is  competent  to 
show  by  parole  what  cows  and 
what  heifers  were  referred  to." 

The  same  rule  of  explanation 
through  extrinsic  evidence  ap- 
plies to  the  other  parts  of  the 
memorandum.  Willett  v.  Smith, 
214  Mass.  494;  Booth  v.  A.  Levy 
etc.  Co.,  21  Cal.  Ap.  427. 

The  names  of  the  parties  need 
not  be  used  if  they  are  so  de- 
scribed that  knowledge  of  the  cir- 
cumstances makes  them  definite. 
Darnell  v.  Laff erty,  113  Mo.  Ap.  282 ; 


Allen  V.  Burnett,  92  S.  C.  95.  In 
Kingsley  v.  Siebrecht,  92  Me.  23, 
69  Am.  St.  486,  the  court  said, 
quoting  from  an  English  case, 
"Parole  evidence  is  always  neces- 
sary to  show  that  the  party  sued 
is  the  person  making  the  con- 
tract and  bound  by  it.  Whether 
he  does  so  in  his  own  name,  or  in 
that  of  another,  or  in  a  feigned 
name,  or  whether  the  contract  be 
signed  by  his  own  hand,  or  by  that 
of  an  agent,  are  inquiries  not  dif- 
ferent in  their  nature  from  the 
question  who  is  the  person  who 
has  just  ordered  goods  in  a  shop. 
If  sued  for  the  price,  and  his 
identity  is  made  out,  the  contract 
is  not  varied  by  appearing  to  have 
been  made  by  him  in  a  name  not 
his  own."  Haskell  v.  Tukesbury, 
92  Me.  551,  69  Am.  St.  529,  "Friend 
George"  held  sufficient;  White  v. 
Dahlquist  Mfg.  Co.,  179  Mass.  427. 


THE  STATUTE  OF  FRAUDS        263 

acceptance"  as  bearing  upon  the  question  of  whether  title 
has  passed  or  not  have  no  necessary  relation  to  the  mat- 
ter of  receipt,  or  delivery,  and  acceptance  as  affecting 
the  Statute. 

"Receive"  as  used  in  the  Statute  refers  to  possession, 
not  merely  to  title.  Passing  of  title,  sometimes  called 
delivery,  or  receipt,  of  title,  is  not  enough  to  satisfy  the 
Statute.ss 

Similarly,  "accept"  relates  to  the  physical  thing 
and  not  to  the  title.*  An  excellent  illustration  is  found 
in  Riley  v.  Bancroft's  Est.^'^  This  involved  a  sale  of 
liquor  by  the  plaintiff,  who  did  business  in  Omaha,  to 
the  defendant,  who  lived  in  Springfield.  The  plaintiff 
was  licensed  to  sell  liquor  in  Omaha,  but  not  in  Spring- 
field. The  liquor  was  delivered  to  a  carrier  in  Omaha  in 
such  a  way  that,  by  the  usual  rules,title  would  have  passed 
there.  But,  as  discussed  hereafter,  delivery  to  a  carrier 
and  acceptance  by  it  do  not  satisfy  the  Statute.  The 
only  acceptance  w^hich  would  suffice  to  take  the  contract 
out  of  the  Statute  occurred  in  Springfield.  The  defendant 
contended  that  title  did  not  pass  until  such  acceptance 
and  that  the  sale  was  therefore  void,  as  the  seller  had  no 
license  to  sell  in  Springfield.  The  court,  however,  de- 
cided in  favor  of  the  plaintiff  on  the  ground  that  title 
could  be  accepted  by  the  buyer,  and  was  so  accepted  in 
Omaha,  even  though  there  was  not  such  acceptance  of 
the  goods  as  was  required  by  the  statute  until  they 
reached  Springfield.^* 

96— Rodgers  v.  Jones,  129  Mass.  a  creditor  of  the  seller  levied  upon 

420.     See  also  the  cases  cited  in  them.     The  court  held  that  title 

the  following  notes.  could    not   pass    until    there    had 

97 — 51  Neb.  864.  been  such  delivery  to  the  buyer 

98 — Occasional  courts  fall  into  and  acceptance  by  him  as  would 

confusion  on  this  point,  as  for  in-  satisfy    the     Statute    of    Frauds, 

stance  in  Nugent  v.  Beakes,  54  N.  Such  a  holding  was  obviously  in 

Y.  S.  486.    After  delivery  of  goods  conflict      with      the      conclusive 

such  as  contracted  for  to  a  carrier,  authorities,  already  cited,   to  the 

but  before  delivery  to  the  buyer,  effect  that  title  does  pass  on  de- 

•See  Uniform  Sales  Act,  Section  4,  (3). 


264  THE  LAW  OF  SALES 

Conversely,  there  may  be  such  receipt  and  acceptance 
of  the  physical  thing  as  will  satisfy  the  Statute  without 
any  passing  of  title  at  all.  Thus,  in  Pinkham  v.  Mattox,*® 
the  contract  provided  expressly  that  the  title  should  not 
pass  upon  delivery  to  the  buyer,  but  should  remain  in  the 
seller  until  payment  of  the  price.  The  buyer  received 
possession  of  the  goods  and  kept  them  without  objection. 
Later,  on  being  sued  for  the  price,  the  buyer  set  up  the 
Statute  and  contended  that,  as  he  had  never  received  the 
goods  as  owner,  there  was  no  acceptance  within  the  mean- 
ing of  the  Statute.  This  contention  the  court  overruled 
and  held  that,  despite  the  retention  of  title  in  the  seller, 
there  was  such  acceptance  as  would  satisfy  the  Statute.^®® 

Change  of  Position. — Although  "receive"  as  used  in 
the  Statute  refers  to  delivery  and  receipt  of  the  thing 
itself,  rather  than  to  the  title,  such  delivery  and  receipt 
do  not  necessarily  require  a  change  of  physical  position. 
There  is  some  slight  suggestion  that  not  even  a  change  of 
physical  possession  is  necessary."^ 

livery  to   a  carrier.     The  result  statute  although  title  to  all  has 

itself  was  sound,  however,  because  not  passed.    McKnight  v.  Dunlap, 

the    contract    involved    expressly  5  N.  Y.  537. 

provided  that  title  should  not  pass  101 — Chaplin  v.  Rogers,  1  East 
until  after  an  actual  inspection  by  192,  as  the  opinion  is  read  in  the 
the  buyer.  light  of  the  facts.  Devine  v.  Warn- 
In  another  case,  Shindler  v.  er,  76  Conn.  229;  Devine  v.  Warner, 
Houston,  1  N.  Y.  261,  49  Am.  Dec.  75  Conn.  375,  "While  it  is  true  that 
316,  counsel  attempted  to  support  there  may  be  an  acceptance  and 
the  proposition  that  physical  de-  actual  receipt  of  the  goods  by 
livery  was  not  necessary  to  take  the  vendee  pursuant  to  a  sale,  un- 
the  case  out  of  the  Statute  by  accompanied  by  a  manual  delivery 
citing  Dewett  v.  Warner,  12  Mass.  or  actual  change  of  custody — as  in 
311,  7  Am.  Dec.  74,  in  which  it  cases  where  the  vendee  is  already 
had  been  held  merely  that  physi-  in  possession,  or  the  vendor  re- 
cal  delivery  was  not  essential  to  tains  the  custody  as  bailee  of  the 
the  passing  of  title.  The  court,  vendee,  thus  assuming  a  new  re- 
however,  recognized  the  difference  lation  to  the  goods — yet  the  law 
in  requirements.  requires  that  the  proof  in  such 
99 — 53  N.  H.  600.  cases  should  be  clear  and  un- 
100 — Acceptance  of  a  part  will  equivocal,  and  establish  an  actual 
take  the  whole  contract  out  of  the  change    of    the    relation    of    the 


THE  STATUTE  OF  FRAUDS        265 

Since,  however,  receipt  of  the  goods  does  refer  to  the 
physical  thing  a  physical  change  of  possession  should 
be  necessary.  And  this  is  in  fact  the  rule,  although 
change  of  possession  docs  not  necessarily  mean  change 
of  position.  In  one  case  the  court  said,  ''I  am  aware 
that  there  are  cases  in  which  it  has  been  adjudged  that 
where  the  articles  sold  are  ponderous,  a  symbolical  or 
constructive  delivery  will  be  equivalent  in  its  legal  effect 
to  an  actual  delivery.  The  delivery  of  a  key  of  a  ware- 
house in  Avhich  goods  sold  are  deposited,  furnishes  an 
example  of  this  kind."^*"^  In  this  case,  however,  there 
had  never  been  an  actual  transfer  of  anything.  When 
the  buyer  examined  the  lumber  sold,  and  agreed  to  take 
it,  the  plaintiff,  as  seller,  said  ''the  lumber  is  yours." 
It  was  on  the  strength  of  this  that  the  plaintiff  con- 
tended the  Statute  had  been  satisfied.  The  court  held, 
that  "here  there  was  no  delivery,  either  actual  or  sym- 
bolical." ''Mere  words  of  contract  unaccompanied  by 
any  act  can  not  amount  to  a  delivery.  To  hold  other- 
wise would  be  repealing  the  Statute. '  '^°^ 

Mutuality  of  Intent. — The  term  "receipt"  connotes 
a  giving  by  some  one  else.  It  is  suggestive  of  a  recipro- 
cal, two-party  affair.  Therefore  there  is  no  "receipt," 
within  the  meaning  of  the  Statute,  of  goods  which  one 
person  has  taken,  or  otherwise  acquired,  from  another 
person  mthout  the  latter 's  consent.     There  is  nothing 

parties    to    the    property."      But,  Lumber  Co.  v.  Hunholtz,  132  Wis. 

actual  receipt  means  such  posses-  613,  "mere  words  inter  partes  will 

sion  by  the  buyer  as  "to  unequiv-  not,  under  the  statute  of  frauds, 

ocally   place  the   property  within  effect    a    change    of    possession." 

the   power   and   under   the   exclu-  Ladnier  v.  Ladnler,  90  Miss.  475, 

sive  dominion  of  the  buyer  as  an  43  So.  946. 

absolute  owner,"  Urbanski  v.  Ku-  If  the  buyer  is  already  in  pos- 

tinski  86  Conn.  22.  session,  mere  words  may  be  suffi- 

102 — Shindler  v.  Houston,  1  N.  cient    for    only    "acceptance"     is 

Y.  261,  49  Am.  Dec.  316.  necessary  in  such  case,  Godkin  v. 

103— Accord,     J.     H.      Silkman  Weber,  154  Mich.  207. 


266  THE  LAW  OF  SALES 

in  such  one-sided  basis  of  possession  to  open  the  way  to 
proof  of  a  contract}'^* 

Receipt  and  Acceptance  Both  Essential. — Mere  actual 
receipt  of  the  goods,  while  essential,  is  not  alone  suf- 
ficient to  take  the  contract  out  of  the  Statute.  There 
must  be  *' acceptance "  as  well  as  receipt.  Thus,  mere 
dehvery  of  a  car  load  of  goods  onto  a  buyer's  side- 
track, without  any  act  of  acceptance  by  the  buyer,  does 
not  satisfy  the  Statute. ^°^  Similarly,  delivery  by  the 
seller  of  wood  contracted  for,  upon  property  owned  by 
the  buyer,  even  though  done  according  to  the  buyer's 
direction,  is  not  enough. ^°^  It  is  not  enough  even  if  the 
buyer  subsequently  moves  the  wood  from  one  place  to 
another  in  order  to  make  a  passage  way  through  it.^®'' 

Acceptance. — As  the  foregoing  discussion  indicates 
clearly  that  something  more  than  physical  receipt  of  the 
goods  is  necessary  to  constitute  ''receipt  and  accept- 
ance," the  question  is  presented,  what  constitutes  ac- 
ceptance ? 

A  concise  answer  is  given  in  one  case,^®*  as  follows: 
''If  the  vendee  does  any  act  to  the  goods,  of  wrong  if  he 
is  not  the  owner  of  the  goods,  and  of  right  if  he  is  owner 
of  the  goods,  the  doing  of  that  act  is  evidence  that  he 
has  accepted  them." 

The  literal  statement  of  this  test  is  in  conflict  with  the 
proposition  that  a  contract  of  conditional  sale  can  be 
taken  out  of  the  Statute  through  the  buyer's  receipt  and 

104 — Washington     Ice     Co.     v.  106 — Dauphiny    &    Co.    v.    Red 

Webster,  62  Me.  341,  16  Am.  Rep.      Poll  Co.,  123  Cal.  548. 


107— Wade   v.    N.   Y.    &   O.   M. 
Ry.  Co.,  52  N.  Y.  627. 


462;    Matthieson  Co.  v.  McMahon, 
38  N.  J.  L.  536. 

105— Calvert     v.     Schultz,     143 
Mich.  441;   Eichberg  Co.  v.  Paper  108 — Leonard    v.     Medford,     85 

Co.,  119  Mo.  Ap.   262,  delivery  to       Md.  666,  37  L.  R.  A.  449,  quoting 
warehouse  of  a  terminal  company      from  Parker  v.  Wallis,  5  El.  &  Bl. 
and  notification  to  buyer;  Kemen-      21. 
sky  V.  Chapin,  193  Mass.  500. 


THE  STATUTE  OF  FRAUDS        267 

acceptance  of  the  goods  concerned,  even  though  the  title 
does  not  pass  to  him  at  all.^°^  But  the  general  idea  seems 
to  accord  with  the  cases,  and  if  for  ''o^vner"  is  under- 
stood one  who  has  some  legal  right  in  the  goods  them- 
selves the  test  is  correct  and  readily  applicable. 

Certainly  there  is  authority  to  the  effect  that  mere 
physical  receipt  by  the  buyer  himself,  and  even  use  by 
him,  as  for  the  purpose  of  testing  the  goods,  does  not 
necessarily  constitute  an  acceptance. ^^° 

On  the  other  hand,  if  the  buyer,  having  actually  re- 
ceived the  goods,  does  assert  rights  in  them  there  may 
be  an  ' '  acceptance, ' '  even  though  such  assertion  of  right 
is  on  a  theory  other  than  that  of  the  contract  alleged. 
For  instance,  in  Durkee  v.  Powell,^^^  the  defendant  had 
bought  a  house.  The  seller  claimed,  and  the  court  agreed, 
that  the  shades  and  screens  had  been  sold  as  personalty 
by  an  independent  contract,  although  to  the  same  buyer. 
The  defendant  took  possession  of  the  screens,  etc.,  along 
with  the  house  and,  denying  the  second  contract,  asserted 
a  right  of  possession  of  them  as  part  of  the  realty.  The 
court  held  this  to  be  a  sufificient  receipt  and  acceptance 
to  take  the  contract  out  of  the  Statute.  It  should  be  noted 
that  the  receipt  in  this  case  was  by  virtue  of  the  contract, 
although  the  acceptance  was  under  a  different  claim. 

If  such  a  decision  seems  still  to  leave  the  question  of 
contract  to  the  possibly  perjured  testimony  of  the  par- 

109 — Pinkliam     v.     Mattox,     53  as   owner."     Other  authority  for 

N.  H.  600.  this    proposition   is   cited    in   the 

110 — Lloyd    V.    Wright,    25    Ga.  case.     As  a  matter  of  fact,  how- 

215;  Wainscott  v.  Kellogg,  84  Mo.  ever,  the  discussion  in  this  case 

Ap.  621;  Hatch  v.  Gluck,  93  N.  Y.  was     unnecessary,     because     the 

S.  508;    Mechanical  Boiler  Clean-  buyer  had   never   "accepted"   the 

ing  Co.  V.  Kellner,  62  N.  J.  L.  544,  plaintiff's  offer  to  sell  and   there 

559,  "Another  proposition  that  is  was,  in  consequence,  no  contract 

vouched  for  upon  principle  and  by  of  sale  at  all.     Darnell  v.  Young, 

the    weight    of    authority  is    that  105  Md.  280,  buyer  took  control  of 

possession  itself  is  not  evidence  goods  only  for  purpose  of  sending 

of  an  acceptance,  and  that  a  com-  them  back  to  seller. 

pliance  with  the  statute  would  re-  --- „-  N  Y   <?   268 

quire  an  acceptance  by  the  vendee 


268  THE  LAW  OF  SALES 

ties,  it  must  be  borne  in  mind  that,  unlike  the  written 
memorandum,  the  receipt  and  acceptance  of  goods  is 
not  supposed  to  show  what  the  contract  was.  Its  pur- 
pose is  merely  to  furnish  a  basis  for  supposing  that  there 
was  really  some  sort  of  a  contract  between  the  parties. 
The  way  is  then  opened  for  evidence,  oral  or  otherwise, 
as  to  just  what  the  contract  was.^^^ 

There  is  no  rule,  and  can  be  none,  as  to  what  sort  of 
act  will  or  will  not  indicate  acceptance.  As  the  test 
above  quoted  says,  any  act  that  indicates  an  assertion 
of  legal  interest  in  the  goods  may  serve  for  acceptance. 
As  the  possible  acts  so  indicating  are  multitudinous,  they 
can  not  and  need  not  be  legally  hall-marked.  The  whole 
matter  is  a  question  of  fact  in  each  particular  case — the 
fact  of  whether  the  act  done  indicates  an  assertion  of 
right  in  the  goods.  Many  courts  answer  this  as  a  judicial 
conclusion. ^^^  Many  courts,  however,  leave  the  question 
to  be  decided  by  the  jury.^^* 

Acceptance  by  Agent. — The  receipt  and  accept- 
ance need  not  be  by  the  buyer  personally,  but  may  be 
done  through  an  agent.*^* 

112— Slater  Brick  Co.  v.  Shakel-  Walla  etc.  Co.,  64  Wash.  285,  id.; 

ton,  30  Mont.    390.  Godkin  v.  Weber,  154  Mich.  207; 

In  Edgar  v.  Breck  &  Sons,  172  Richards  v.  Burrows,  62  Mich.  117, 

Mass.    581,    the    acceptance    was  causing     wood     to     be     repiled; 

made  under  such  circumstances  as  Schmidt  v.  Thomas,  75  Wis.  529, 

to  refute  the  idea  of  a  warranty  oral  statements. 

by    the    seller.      The    court   held,  114— Garfield  v.  Paris,  96  U.  S. 

however,  that  the  acceptance  did  557;  Pinkham  v.  Mattox,  53  N.  H. 

not  constitute  a  new  contract,  but  600;    Jarrell    v.    Young,    105    Md. 

only  opened  the  way  for  proof  of  280. 

the   real    contract   which    in   fact  115 — Daniel  v.  Hannah,  106  Ga. 

contained  a  warranty.  91;   Wilcox  etc.   Co.  v.   Green,  72 

113 — Koster     v.     Koedding,     68  N.  Y.  17;  Jones  v.  Mechanics  Bk., 

N.  Y.  S.  794,  holding  that  keeping  29    Md.    287,    96    Am.    Dec.    533; 

a  horse   for   24   hours   and   using  Townsend  v.  Hargraves,  118  Mass. 

him  was  an  acceptance;  MacEvoy  325,  through  attornment  of  third 

V.   Aronson,   92   N.   Y.   S.   724,   in-  person  in  possession, 

ferred  from  unreasonable  delay  in  An     administrator     is     not     an 

returning      physical      possession;  agent,  for  such  a  purpose.  Smith 

Adams  County  etc.  Co.  v.  Walla  v.  Brennan,  62  Mich.  349. 


THE  STATUTE  OF  FRAUDS        269 

Acceptance   by  Carrier. — Title    to    goods    which 

were  unspecified  at  the  time  the  contract  was  entered 
into  is  generally  held  to  pass  to  the  buyer  on  the  seller's 
delivery  to  a  carrier  of  goods  conforming  to  the  contract. 
As  has  already  been  pointed  out,  this  is  based  on  the 
theory — or  the  legal  fiction — that  the  carrier  is  the 
buyer's  agent  to  assent  to  the  seller's  specification.  In 
a  sense  the  carrier  is  the  buyer's  agent  to  accept  the 
title  to  the  goods.  It  is  occasionally  said,  therefore,  that 
"the  carrier  is  the  buyer's  agent  to  accept."  So  far  as 
this  means  "to  accept  title/ ^  it  is,  in  some  measure,  cor- 
rect. But  it  is  incorrect  to  say  that  the  carrier  is  agent 
to  accept  the  goods,  within  the  meaning  of  the  Statute. 
Delivery  of  goods  to  a  carrier  and  its  acceptance  of  them 
for  carriage  to  the  buyer  may  constitute  actual  receipt 
of  them  by  the  buyer.  But  it  does  not  constitute  accept- 
ance of  them  by  either  the  buyer  or  his  agent.  This  is 
so  even  though  the  buyer  has  himself  designated  the 
carrier  to  be  used.^^^ 

There  is  some  conflict  on  this  point,  more  apparent 
than  real,  how^ever,  when  the  facts  are  examined.  In 
Cross  v.  0 'Donnell,"''  the  buyer  of  certain  hoops  had 
carefully  examined  them  and  agreed  to  take  specific  ones. 
He  directed  that  these  be  delivered,  for  him,  to  a  certain 
boat,  which  was  done.  The  court  held  the  Statute  to  be 
satisfied,  saying,  "Here  the  defendants  accepted  the 
hoops.  *  *  *  There  is  nothing  in  the  Statute  which 
requires  that  the  accepting  and  receiving  at  the  same 
time.  Either  may  precede  the  other.  *  *  *  j^  has 
finally  been  settled,  both  in  this  country  and  in  England, 
that  a  delivery  to  a  general  carrier,  not  designated  by 
the  purchaser,  is  not  a  sufficient  compliance  with  the 

116— Johnson     v.     Cuttle,     105  A.  Levy  &  Co.,  21   Cal.  Ap.  427; 

Mass.   447,   7   Am.   Rep.    545;    Mc-  DarneU    v.    Young,    105    Md.    280; 

Cormick  Mach.  Co.  v.  Cusack,  116  Shelton  v.  Thompson-Bennett  Co., 

Mich.  647;  Card  v.  Ramos,  23  Cal.  96  Mo.  Ap.  327. 
Ap.  303,   "delivery"  and  "receipt"  m^u   n.   Y.   661,  4   Am.   Rep. 

are    not    synonymous;    Kemensky  ^.g.. 
V.  Chapin,  193  Mass.  500;  Booth  v. 


270  THE  LAW  OF  SALES 

Statute,  Eodgers  v.  Phillips,"*  and  for  the  best  of  rea- 
sons. In  such  a  case  the  purchaser  has  done  nothing 
beyond  making  the  void  contract.  He  has  neither  ac- 
cepted nor  received  the  goods  himself,  nor  authorized 
or  designated  any  agent  to  do  it  for  him.  But,  in  this 
case,  the  purchasers  designated  the  agents  of  the  'Cur- 
lew' to  receive  and  transport  the  hoops  to  them.  They 
were  the  agents  of  defendants  for  the  purpose  of  receiv- 
ing the  hoops  from  the  plaintiffs.  It  is  not  necessary 
to  determine  in  this  case  that  a  mere  carrier,  designated 
by  the  buyer,  can  both  accept  and  receive  for  him,  so 
as  to  make  a  compliance  with  the  Statute ;  but  I  can  find 
no  reason,  founded  upon  principle  or  authority,  to  doubt 
that,  after  the  buyer  has  accepted  the  article  purchased, 
a  carrier,  designated  by  him  to  take  and  transport  it, 
can  bind  him  as  his  agent  in  receiving  it. '  '^^® 

Time  of  Acceptance. — The  receipt  and  acceptance 


need  not  be  coincident  with  the  making  of  the  contract, 
but  may  take  place  any  time  thereafter.'^''" 

Furthermore,  as  the  cases  cited  on  the  various  points 
above  clearly  show,  the  acceptance  need  not  be  coinci- 
dent with  the  receipt,  but  may  follow  it.  It  has  been  said 
even  that  acceptance  may  precede  receipt.^^^ 

Receipt  and  Acceptance  of  Part  of  the  Goods. — Eeceipt 
and  acceptance  of  a  part  of  the  goods  contracted  for  is 
sufficient  to  take  the  entire  contract  out  of  the  statute 
and  permit  oral  evidence  of  the  sale  of  the  whole  amount. 
A  somewhat  extreme  illustration  is  Garfield  v.  Paris."^ 

118—40  N.  Y.  519.  63   Mo.   563;    Slater  Brick   Co.   v. 

119— Real    conflict    is   found    in  Shakelton,  30  Mont.  390;   Gabriel 

Spencer  v.  Hale,  30  Vt.  314,  7  Am.  v.  Kildare  Elevator  Co.,   18  Okla. 

Dec.  309,  where  the  buyer  had  not  318;    Raymond    v.    Colton,    N.    Y. 

accepted,    but   had    merely   desig-  104  Fed.  219. 

nated  the  carrier. 

,„.„.,,  -,  ^^  ^„  121 — Cross   V.   O  Donnell,   44    N. 

120— Pinkham     v.     Mattox,     53  „    o^-,    a    ^ 

XT    TT     ^««      ii^T  T^    •   v-x  ,^      ,  H.  661,  4  Am.  Rep.  721. 

N.   H.   600;    McKnight   v.    Duulap, 

5  N.  Y.  537;   Rickey  v.  Tenbroek,  122—96  U.  S.  557. 


THE  STATUTE  OF  FRAUDS        271 

The  defendant  had  contracted  to  buy  Hquor  from  the 
plaintitr,  the  goods  being  described  by  the  contract,  but 
not  then  identified.  As  part  of  the  contract  the  plaintiff 
agreed  to  furnish  labels  of  a  special  type,  other  than 
those  ordinarily  on  the  bottles.  The  plaintiff  did  send 
a  bunch  of  such  labels  to  the  defendant  and  the  jury 
found  that  they  were  accepted  by  him.  On  suit  for  the 
purchase  price,  the  defendant  set  up  the  Statute.  The 
court  held,  however,  that  the  receipt  and  acceptance  of 
the  labels  opened  the  way  for  oral  proof  of  the  entire 
contract.^*' 

As  to  the  propriety  of  this  rule,  another  court  has 
said,^*^*  '*It  has  been  insisted  that  this  construction  may 
leave  a  purchaser,  who  buys  and  receives  a  single  article, 
liable  to  be  charged  as  the  purchaser  of  more,  if  the 
vendor  can  bring  perjured  witnesses  to  say  that  it  was 
delivered  as  part  of  the  greater  number  purchased.  Par- 
ties are  exposed  to  the  commission  of  perjury,  in  rela- 
tion to  all  facts  depending  on  human  testimony.  If  the 
sanctions  of  an  oath,  and  a  severe  cross-examination 
prove  an  insufficient  security,  the  party  liable  to  suffer 
must  seek  protection  in  the  congruity  and  consistency 
of  truth,  and  the  extreme  difficulty  of  making  falsehood 
accord  with  the  context  of  circumstances.  The  Statute 
of  Frauds  has  interposed  some  salutory  safeguards.  If 
they  are  not  sufficiently  enlarged,  the  legislature  alone 
has  power  to  extend  its  provisions." 

Must  be  Goods  Contracted  For. — The  goods  ac- 


tually received  and  accepted  must  be  part  of  the  goods 
covered  by  the  contract  alleged.  The  mere  fact  that 
the  defendant  has  accepted  certain  goods  will  not  open 

123 — Accord,  French  v.  Boston  Md.  15,  109  Am.  St.  552;  Leonard 

Nat'l  Bk.,  179  Mass.  405;  MacEvoy  v.  Medford,  85  Md.  666,  37  L.  R.  A. 

V.  Aronson,  92  N.  Y.  S.  724;   New  449;    Ford   v.    Howgate,    106    Me. 

England  etc.  Co.  v.  Standard  etc.  517;    Conelly   Construction   Co.   v. 

Co.,  165  Mass.  328,  52  Am.  St.  516;  Royce,  35  Okla.  425. 

Weeks  v.  Crie,  94  Me.  458,  80  Am.  -„.     r»„,r,-.,  „   n/r^^  «   io  ht     aoa 

„^    ,,„    „,  ^  '  o,    .X,-    ..«,  124 — Davis  V.  Moore,  13  Me.  424. 

St.  410;  Richardson  v.  Smith,  101 


272  THE  LAW  OF  SALES 

the  way  to  proof  of  some  contract  which  did  not  cover 
those  goods.  Acceptance  of  goods  does  not  permit  proof 
of  any  and  every  contract  of  sale  between  the  parties, 
but  only  of  the  particular  contract  under  which  the  goods 
were  dehvered  and  received.  In  Richardson  v.  Smith/^^ 
for  instance,  the  contract  was  for  the  sale  of  a  number 
of  cases  of  canned  tomatoes.  At  the  time  the  contract 
was  made  the  defendant  had  received,  and  apparently 
accepted,  a  couple  of  cans  as  samples.  These  cans  so 
received,  however,  were  not  deducted  from  the  number 
which  the  plaintiff  agreed  to  furnish  for  the  price  stated. 
It  was  held  that  no  part  of  the  goods  contracted  for  had 
been  received  by  the  buyer.  The  court  said,^^^  "The 
receipt  and  acceptance  of  the  buyer  of  samples  of  the 
goods  are  held  to  be  a  compliance  wdth  the  Statute  when 
the  samples  are  considered  and  treated  by  both  parties 
as  constituting  a  part  of  the  goods  sold  and  as  diminish- 
ing the  quantity  or  weight  of  such  goods  to  the  extent 
of  their  own  bulk,  otherwise  the  taking  of  samples  has 
no  effect  upon  the  validity  of  the  contract." 

Must  Have  Been  Received  Under  the  Contract. — 


It  obviously  follows  from  this  principle  that  the  goods 
* '  accepted ' '  must  have  been  received  under  and  by  virtue 
of  the  contract.  Hence,  even  though  the  buyer  takes  pos- 
session of  the  goods  under  a  claim  of  o\\^lership  or  other- 
wise, it  is  not  an  ''acceptance"  of  them  under  the  con- 
tract of  sale  if  the  seizure  were  by  way  of  trespass,  or 
foreclosure  of  a  mortgage,  or  attachment,  or  for  some 
other  reason  than  the  contract.^^''  This  is  not  inconsistent 
with  the  decision  in  Durkee  v.  Poivell,  supra,  because  in 
that  case  the  goods  were  received  under  the  contract 

125—101    Md.    15,    109    Am.    St.  127— Hudson    v.    Emmons,    107 

552.  Mich.  549;   Washington  Ice  Co.  v. 

126 — Quoting    from    the    Amer-  Webster,  62  Me.  341.  16  Am.  Rep. 

lean  and  English  Encyclopedia  of  4G2;    Baker    v.    Cuyler,    12    Barb. 

Law  and  citing  considerable  (N.  Y.)  C67.  See  also,  ante,  p.  265. 
authority. 


THE  STATUTE  OF  FRAUDS        273 

which  was  later  denied.    They  were  not  taken  by  trespass 
originally. 

Separate  Contracts. — Another  phase  of  the  s^me 


rule  is  the  fact  that  receipt  and  acceptance  of  goods  de- 
livered under  one  contract  will  not  admit  oral  proof  of 
another  contract,  even  though  the  latter  has  been  entered 
into  coincidently  with  the  first  or  is  otherwise  intimately 
related  to  it.  In  Tompkins  v.  Sheehan^^*  the  defendant 
had  contracted  to  buy  1900  shares  of  stock  then  owned, 
in  severalty,  by  five  different  persons.  The  arrangement 
was  made  through  one  owner  as  an  agent  representing 
all  of  the  others  and  the  defendant  contracted  to  take 
all  1900  shares.  The  certificates  of  one  owner,  the  plain- 
tiff, were  not  immediately  at  hand  and  those  of  the  other 
o^vners,  representing  1700  shares,  were  deUvered  and 
accepted  by  the  defendant.  Thereafter  the  plaintiff's 
shares  w^ere  delivered,  but  were  refused.  On  suit  it  was 
contended  that  acceptance  of  the  1700  shares  opened 
the  way  for  oral  proof  of  the  contract.  The  court  held 
that  it  was  not  a  question  of  proving  the  contract ;  that 
there  were  in  fact  five  separate  contracts  and  that  accept- 
ance of  goods  covered  by  four  of  them  would  not  open 
the  wa}'  for  proof  of  the  fifth. ^^^ 

The  most  difficult  problem  arising  out  of  this  rule  is 
to  determine  when  there  is  one  entire  contract,  under 
which  a  pari:  of  the  goods  have  been  received  and  ac- 
cepted, and  vdien  there  are  merely  two  or  more  coinci- 
dent and  related  but  wholly  independent  contracts.  There 
are  no  rules  for  determining  this  issue.  Decisions  involv- 
ing the  same  essential  facts  have  not  been  sufiiciently 
numerous  so  that  any  judicial  custom  can  be  deduced.  As 
yet,  therefore,  each  case  depends  upon  the  conclusion 
of  the  particular  judge,  without  the  guidance  of  rule, 
although  possibly  influenced  by  other  decisions  on  more 

128—158  N.  Y.  617.  Weeks  v.  Crie,  94  Me.  458,  80  Am. 

129— Accord,  McCormick   Mach.      St.  410. 
Co.    V.    Cusack,    116    Mich.    647; 


274 


THE  LAW  OF  SALES 


or  less  similar  facts.  There  is  no  need  here  for  reference 
to  particular  cases  which  have,  on  their  own  facts,  been 
held  to  show  or  not  to  show  an  entire  contract.^^° 

Many  courts  recognizing  that  the  question  is  entirely 
one  of  fact — though,  properly  speaking,  it  is  one  of 
conclusion,  rather  than  of  actual  fact — have  shifted  the 
burden  of  the  conclusion  to  the  jury.  In  Weeks  v.  Crie,"* 
the  trial  court  had  instructed  the  jury  as  a  matter  of  law, 
that  if  the  two  contracts  were  made  at  the  same  inter- 
view they  constituted  a  single  agreement  in  this  respect. 
The  upper  court  said,  ''Whether  such  negotiations  for 
separate  articles  result  in  one  entire  contract  for  the 
whole,  or  whether  the  contract  for  each  remains  separate 
and  distinct,  may  depend  upon  many  circumstances.  It 
raises  a  question  of  fact  properly  to  be  passed  upon  by  a 
jury.  *  *  *  If  the  circumstances  are  such  as  to  lead  to 
a  reasonable  supposition  that  the  parties  intended  that 
the  whole  series  of  transactions  should  constitute  one 


130 — By  way  of  illustration,  in 
Ford  V.  Howgate,  106  Me.  517,  the 
contract  was  held  to  be  entire  al- 
though covering  shares  of  stock 
and  an  interest  in  an  automobile. 

One  keenly  analytical  text- 
writer,  Williston,  Contracts,  Sec. 
863,  however,  lays  down  this  prop- 
osition:— "The  essential  test  to 
determine  whether  a  number  of 
promises  constitute  one  contract 
or  more  than  one  is  simple.  It 
can  be  nothing  else  than  the 
answer  to  an  inquiry  whether  the 
parties  assented  to  all  the  prom- 
ises as  a  single  whole,  so  that 
there  would  have  been  no  bargain 
whatever,  if  any  promise  or  set 
of  promises  were  struck  out."  But 
as  the  writer  himself  states  and 
as  Is  obvious  from  the  decisions 
discussed,  this  test  is  exceedingly 
Indefinite  in  its  application. 

A  clear  distinction  should  be 
kept  In  mind  between  this  ques- 


tion of  whether  there  is  one  single 
contract  or  several  separate  ones 
and  the  question  whether  one 
single  contract  is  itself  entire  or 
is  divisible,  so  that  breach  of  one 
part  is  or  is  not  breach  of  the 
whole  contract.  For  instance,  in 
Herbert  v.  Rhodes,  etc.  Co.,  106 
111.  Ap.  579,  a  contract  for  the 
sale  of  twelve  dozen  pairs  of  pants 
was  held  to  be  divisible,  so  that 
the  buyer  could  keep  one  dozen 
pairs  and  reject  the  other  eleven 
dozen  pairs.  It  seems  impossible, 
however,  that,  had  the  question 
of  the  Statute  been  involved,  the 
court  would  have  held  it  to  be 
twelve  separate  contracts.  Cases 
involving  only  the  entirety  or 
divisibility  of  an  admittedly  single 
contract  should  not  properly  be 
treated  as  authority  on  the  ques- 
tion whether  there  is  one  contract 
or  more. 
131—94  Me.  458,  80  Am.  St.  410. 


THE  STATUTI.  OF  FRAUDS        275 

trade,  they  may  be  regarded  as  one  entire  contract ;  other- 
wise not.  *  *  *  Whether  the  negotiations  constituted 
one  contract  or  more  was  a  question  of  fact,  and  should 
have  been  submitted  to  the  jury." 

This  shifting  of  the  responsibility  to  the  jury  would 
seem  undesirable.  Inasmuch  as  the  jury  have  no  defini- 
tion of  the  distinction  between  one  contract  and  several 
contracts  to  work  on,  there  can  be  no  pretense  of  con- 
sistency in  their  decisions.  Although  the  conclusion 
sought  is  in  a  sense  a  question  of  fact,  it  is  at  best  a 
conclusion  only.  In  reaching  it  the  judge  at  least  has  the 
benefit  of  prior  conclusions  which  may  be  analogous, 
even  though  they  be  not  so  frequent  as  to  constitute  a 
rule. 

4.     Satisfaction  of  the  Statute  by  Payment,  or  Giving 
OF  Earnest  Money 

All  that  has  just  been  said  of  receipt  and  acceptance 
as  satisfying  the  Statute  is  true  also — so  far  as  it  can 
be  applied — of  payment  as  a  satisfaction  of  the  Statute. 

In  addition  to  its  reference  to  receipt  and  acceptance 
of  goods  the  Statute  also  permits  proof  of  an  oral  con- 
tract if  the  buyer  has  given  ''something  in  earnest  to 
bind  the  bargain  or  in  part  payment."  The  phrases  ''in 
earnest"  and  "in  part  payment"  are  treated  by  the 
courts  as  being  synonymous. ^^'^ 

Time  of  Payment. — The  payment  need  not  be  made  at 
the  time  of  the  making  of  the  contract,  but  may  be  at 
any  time  thereafter.^^^ 

132 — Groomer   v.    McMilan,   143  vldes  that  the  buyer  "shall  at  the 

Mo.  Ap.   612;    Howe  v.  Hayward,  time  pay   some  part  of   the   pur- 

108    Mass.    54;    Hudnut   v.    Weir,  chase  money,"   the  rule   is  other- 

100  Ind.  501.  wise.     Effect  is   given   to  the   re- 

133 — Driggs  v.  Bush,  152  Mich.  quirement    and    it    is    held    that 

53.    See  also  the  cases  cited  in  the  while  payment  need  not  be  concur- 

followins  rotes.  rent  with  the  original  making  of 

Where,  however,  a  statute  like  the  agreement,  at  least,  when  it  is 

that  o£  New  York  expressly  pro-  made,  "the  parties  must  reaffirm 


276  THE  LAW  OF  SALES 

Medium  of  Payment. — The  payment  need  not  be  in 
money.  As  lias  already  been  pointed  out,  the  Statute 
applies  to  contracts  of  barter  and  exchange  as  well  as 
to  technical  sales.  ''Payment"  is  accordingly  construed 
to  cover  the  goods,  services,  or  any  other  thing  which 
forms  the  quid  pro  quo  for  the  title. ^^* 

Since  the  cancellation  of  an  existing  debt  is  perfectly 
vahd  consideration  for  a  promise,  it  follows  that  the 
payment  may  be  in  the  form  of  canceling  a  debt.  Thus, 
giving  credit  on  notes  of  the  seller  is  such  a  payment  by 
the  buyer  as  will  take  the  matter  out  of  the  Statute."^ 

Promise  as  Payment — However,  just  as  in  the  case 


of  alleged  receipt  of  part  of  the  goods,  mere  words  are  not 
sufficient  of  themselves  to  constitute  payment.  There 
must  he  payment.  "The  payment  may  be  made  in  money 
or  property,  or  in  the  discharge  of  an  existing  debt,  in 
whole  or  in  part,  due  from  the  vendor  to  the  purchaser. 
Or  the  extinguishment  of,  or  pa^Tnent  upon  a  promis- 
sory note  held  by  the  latter  against  the  former.  A  mere 
agreement  to  apply  the  purchase  money  to  either  of  these 
objects  would  not  be  enough,  because  the  contract  would 
still  rest  in  words,  and  nothing  more.  The  agreement 
to  pay  the  note  or  satisfy  the  debt  must  be  consummated 
and  carried  into  effect  by  an  act  which  shall  be  obligatory 

or  restate  the  terms  of  the  con-  bin  v.  Hyde,  32  N.  Y.  523;  Koewing 
tract."  And  this  reaffirmance  v.  Wilder,  N.  Y.,  128  Fed.  558;  Bur- 
must  be  express  and  for  the  pur-  ton  v.  Gage,  85  Minn.  355,  assign- 
pose.  Koewing  v.  Wilder,  N.  Y.,  ment  of  another  contract  as  pay- 
128  Fed.  558;  Colton  v.  Raymond,  ment. 

N.  Y.,  114  Fed.  863;  Milos  v.  Cf.  Hewson  v.  Peterman  Mfg. 
Covacevitch,  40  Ore.  239.  Co.,  76  Wash.  600,  in  which  jt  was 
134 — "The  term  'purchase  held  that  the  buyer's  resignation 
money'  as  used  in  this  statute,  from  a  company  was  not  part  pay- 
means  simply  the  compensation  ment  even  though  it  might  have 
or  consideration  which  the  seller  been  a  valid  "consideration"  for 
is  to  receive  for  his  property,"  the  seller's  promise. 
Johnson  v.  Tabor,  101  Miss.  78,  13n— Johnson  v.  Tabor,  101  Miss. 
citing  Devin  v.  Himer,  29  la.  297;  78;  Diekman  v.  Young,  87  Mo.  Ap. 
Driggs  v  Bush,  152  Mich.  53;  Bra-  530. 


THE  STATUTE  OF  FRAUDS       277 

upon  the  purchaser  and  enable  the  vendor  to  enforce  the 
contract  of  sale.  The  note  should  be  delivered  up  and 
cancelled;  or,  if  the  purchase  money  falls  short  of  com- 
plete payment,  it  should  be  extinguished  by  an  indorse- 
ment made  upon  it  in  writing  which  shall  operate  effect- 
ually as  an  extinguishment  pro  tanto.  And  if  the  pur- 
chase money  is  to  be  applied  to  pay  an  open  account,  in 
whole  or  in  part,  the  creditor  and  purchaser  should  part 
with  some  written  evidence  of  such  application  which 
shall  bind  him  and  put  it  in  the  power  of  his  debtor  and 
vendor  to  enforce  the  contract.  "^^® 

Mutuality  Required. — The  alleged  payment,  to  be 
really  such,  must  be  not  only  delivered  by  the  buyer, 
but  also  must  be  accepted  by  the  seller.  Thus,  mere  physi- 
cal receipt  of  a  draft  by  the  seller,  even  though  the  buyer 
intended  it  as  payment,  is  not  payment  if  the  seller  has 
never  accepted  it  as  such.^"  And,  in  general,  the  receipt 
and  acceptance  of  a  check,  draft  or  other  paper  is  not  pay- 
ment, "unless  it  is  received  by  the  seller  and  agreed  that 
it  is  an  absolute  payment;  and  this  must  be  clearly  estab- 
lished."^^* A  fortiori,  mere  tender  of  payment  which  is 
refused  by  the  seller  is  not  enough  to  take  the  case  out  of 
the  Statute.^3^ 

Conversely,  a  physical  transfer  by  the  buyer  to  the 
seller  of  things  which  he  does  not  intend  the  seller  to 
keep  in  payment,  will  not  amount  to  a  payment.^*® 

136— Brabin  v.  Hyde,  32   N.   Y.  Dwinell,  101  Neb.  712,  164  N.  W. 

519;  Accord,  Gorman  v.  Brossard,  722;  Knohn  v.  Bantz,  68  Ind.  277, 

120    Mich.    611;    Milos   v.   Covace-  note;  Combs  v.  Bateman,  10  Barb, 

witch,  40  Ore.  239.  (N.  Y.)  573,  note. 

137 — Johnson   v.    Morrison,    163  A   check   which   is   received   in 

Mich.  322;  Young  v.  Ingalsbe,  208  payment  is  "payment"  within  the 

N.    Y.    503;    Driggs   v.    Bush,    152  meaning  of  the  Statute,  Logan  v. 

Mich.  53.  Carroll,  72  Mo.  Ap.   613;    McLure 

138 — Groomer  v.  McMillan,  143  v.  Sherman,  70  Fed.  190. 

Mo.  Ap.   612,  holding  also  that  a  139 — Hershey  Lumber  Co.  v.  St, 

draft,  not  so  received  in  payment,  Paul  etc.  Co.,  66  Minn.  449. 

is    not   even    something   given    in  -.An    Ttr  •  ttj     ^    h^^   -,  ^ 

,,      ,  140 — Weir  V.   Hudnut,   115  Ind. 

earnest.       Accord,     Hessberg     v.      -^r 

Welsh,  147  N.  Y.  S.  44;   Bates  v. 


278  THE  LAW  OF  SALES 

Through  Agents. — Payment  need  not  be  made  directly 
to  the  seller,  but  may  be  received  and  accepted  by  an 
agent."^ 

5.     Effect  of  Failure  to  Satisfy  the  Statute 

If  there  be  no  memorandum,  no  part  payment,  nor 
receipt  and  acceptance  of  the  goods,  the  original  Statute 
provides  that  the  contract  shall  not  "be  allowed  to  be 
good".  In  the  various  states  the  phraseology  differs. 
Some  declare  such  contracts  '^ invalid,"  others  make  them 
**void."  Still  others  pro\ide  that  they  "shall  not  be 
binding."  This  variation  of  form  of  expression,  how- 
ever, seems  to  have  httle  if  any  effect  upon  the  judicial 
interpretation.  To  say  that  a  contract  "shall  not  be 
allowed  to  be  good"  seems  obviously  only  a  lengthier 
way  of  saying  that  it  is  "void,"  or  "invahd."  Except 
for  sporadic  instances,  the  courts  do  treat  them  as  synony- 
mous. The  effect  of  the  Statute  depends  upon  the  mean- 
ing given  by  the  courts  to  these  expressions. 

Does  Not  Destroy  the  Contract. — As  was  indicated 
heretofore,  there  is  considerable  question  whether  the 
primary  purpose  of  the  Statute  is  to  prevent  perjury 
or  to  protect  property.^*^  Whatever  the  answer  to  that 
may  be,  it  may  be  said  in  general  that  the  Statute  is 
treated  as  being  for  the  benefit  of  the  parties  to  the  con- 
tract, rather  than  for  the  benefit  of  the  public.  It  is  not 
applied  to  the  prevention  of  perjury  nearly  so  widely 
as  its  literal  statement,  that  the  contract  shall  not  be 
allowed  to  be  good,  would  admit. 

As  between  the  parties,  if  the  parties  to  the  suit  do 
not  themselves  choose  to  take  advantage  of  the  Statute, 

141 — Case  v.  Cramer,  34  Mont.  142 — See  ante,  p.  238.  The  object 

142;    Jones    v.    Wattles,    66    Neb.  of    the    law    is    to    prevent    false 

533.    But  such  alleged  agent  must  swearing  and  perjury,  Michels  v. 

at    least    have    had    authority    to  West.  109  111.  Ap.  418;  Townsend 

make  a  contract.     City   Drug  Co.  v.  Hargraves,   118   Mass.   325. 
V.  Am.  Soda  Co.,  13  Ga.  Ap.  435. 


THE  STATUTE  OF  FRAUDS        279 

the  court  will  not  of  its  own  initiative  object  to  the  proof 
of  the  contract,  nor  consider  whether  the  testimony  is  apt 
to  be  perjured."^  It  is  too  late  for  even  a  party  to 
object  that  the  contract  is  not  in  writing,  after  the  trial 
has  been  had  without  such  objection.^** 

If  the  contract  is  permitted  to  be  proved  because  there 
has  been  such  acceptance,  or  part  payment,  or  memo- 
randum, as  will  take  it  out  of  the  Statute,  its  terms  and 
its  effects  are  considered  as  of  the  date  it  was  entered 
into.  If  proved,  it  takes  effect  as  a  valid  oral  contract,  not 
as  though  it  were  some  new  agreement  entered  into  at  the 
time  the  acceptance  or  payment  occurred,  or  the  memo- 
randum was  written.  For  instance,  in  Vincent  v.  Ger- 
mond,^"  the  plaintiff  had  sold  four  cattle  to  the  defendant 
with  the  express  stipulation  that  the  risk  of  loss  should 
be  on  the  defendant.  It  was  an  oral  contract,  with  noth- 
ing to  take  it  out  of  the  Statute.  One  of  the  cattle  died. 
Subsequently  the  defendant  received  and  accepted  the 
remaining  three.  The  seller  was  given  judgment  against 
him  for  the  price  of  all  four  cattle.  Although  the  fourth 
animal  was  not  in  existence  when  the  receipt  and  accept- 
ance took  place,  the  buyer's  liability  was  determined  by 
the  terms  of  the  oral  contract  and  as  of  the  date  on 
which  it  was  entered  into.^*^ 

In  fact,  there  is  nothing  to  indicate  but  that  the  con- 
tract is  good  and  valid  in  all  respects,  if  it  can  be  proved. 

-As  Regards  Third  Persons. — As  regards  third  per- 


sons, not  parties  to  the  contract,  or  in  pri^dty  with  the 

143— Booker  v.  Wolf,  195  111.  mulgee  Mills,  55  Ga.  633;  Riley  v. 
365;  Mather  v.  Scoles,  35  Ind.  1,  Bancroft's  Est.,  51  Neb.  864,  hold- 
referring  to  the  4th  section  only.  ing  that  title  passed  when  the  con- 

144 — Simis  v.  Wissel,  41  N.  Y.  tract  was  made,  even  though  the 

S.  1024,  referring  to  sec.  4;  Mich-  acceptance  which  permitted  proof 

els  V.  West,  109  111.  Ap.  418,  sec.  4.  of  the  contract  did  not  take  place 

145—11  Johns.   (N.  Y.)  283.  till  some  time  after;   Amsinck  v. 

146 — Accord,  Townsend  v.  Har-  Am.  Ins.  Co.,  129  Mass.  195,  title 
graves,  118  Mass.  325,  citing  passes  so  as  to  give  buyer  an  in- 
Leather  Cloth  Co.  V.  Hieronimus,  surable  interest  at  date  of  oral 
L.  K.  10  Q  B.  140;  Phillips  v.  Oc-  contract. 


280  THE  LAW  OF  SALES 

parties,  the  contract  is  equally  good  and  valid  if  proved. 
Moreover,  as  regards  such  third  persons,  the  contract 
does  not  need  to  conform  to  the  Statute  in  order  to  be 
provable.  As  to  them  the  oral  contract  is  not  only  allowed 
to  be  good;  it  is  even  allowed  to  be  proved,  despite  ob- 
jection and  appeal  to  the  Statute.  In  Jackson  v.  Stan- 
field,^*''  for  instance,  the  plaintiff  sued  to  recover  dam- 
ages because  defendant  had  induced  the  Studebaker 
Bros,  to  break  a  contract  with  plaintiff.  This  contract 
was  oral,  for  the  sale  of  chattels,  and  came  within  the 
Statute.  The  court  said,  **It  is  urged  that  the  contract 
between  the  Studebaker  Bros.  Manufacturing  Company 
and  appellant  Newton  Jackson  is  void  under  the  Statute 
of  Frauds,  because  the  value  of  the  lumber  was  over  $50, 
and  the  finding  does  not  show  that  the  offer  was  accepted 
in  writing.  If  this  be  true,  it  is  no  concern  of  the  ap- 
pellees (the  defendants).  Parties  to  contracts  and  their 
privies  can  alone  take  advantage  of  the  fact  that  a  con- 
tract is  invalid  under  the  Statute  of  Frauds.  Many  forms 
of  expression  by  this  and  other  courts  illustrate  the 
doctrine  that  a  third  person  can  not  make  the  Statute 
of  Frauds  available  to  overthrow  a  transaction  between 
other  persons ;  that  the  defense  of  this  Statute  is  purely 
a  personal  one  and  can  not  be  made  by  strangers. ^*^  It 
concerns  the  remedy  alone,  and  the  modern  law  is  well 
settled  that,  in  the  absence  of  a  statutory  provision  to 
the  contrary,  the  effect  of  the  Statute  is  not  to  render 
the  agreement  void,  but  simply  to  prevent  its  direct 
enforcement  by  the  parties,  and  to  refuse  damages  for 
its  breach".^*® 

147—137   Ind.  592,  23  L.  R.  A.  82,  233  Am.  Rep.  30;  Int.  &  G.  N. 

588.  Ry.   V.   Searight,  8   Tex.   Civ.   Ap. 

148 — Citing  other  Indiana  cases  593;  Cowan  v.  Adams,  10  Me.  374, 

and  8  Am.  &  Eng.  Encyc.  of  Law,  25  Am.  Dec.  242. 

659.  An  insurance  company  can  not 

149 — The    Indiana    statute    pro-  defeat  the  claim  of  insured  on  the 

vides   that   such   contracts   "shall  theory  that  a  contract  between  the 

not  be  valid."     Accord.  Benton  v.  insured    and    some   one    else   was 

Pratt.  2  Wend.  (N.  Y.)  .385,  20  Am.  rendered     void     by     the     Statute. 

Dec.  623;  Rice  v.  Manley,  66  N.  Y.  Northwestern   Mutual  Life  Co.  v. 


THE  STATUTE  OF  FRAUDS 


281 


^As  to  Persons  in  Privity  with  the  Parties. — A  third 

person,  however,  who  is  in  privity  of  relation  with  a 
party  to  a  contract  can  take  advantage  of  the  Statute 
to  protect  himself.  Thus  a  buyer  in  good  faith  from  one 
in  possession  of  the  goods  can  use  the  Statute  in  defense 
against  a  plaintiff  who  claims  the  property  under  a  prior 
oral  contract."" 

Creditors. — Creditors  of  a  seller  are  not  consid- 


ered as  privies  to  the  contract  and  therefore  can  not  set 


Heiman,  93  Ind.  24,  promise  to 
answer  for  debt  of  another; 
Mutual  Mills  Co.  v.  Gordon,  20  111. 
Ap.  559;  Amsinck  v.  Am.  Ins.  Co., 
129  Mass.  185,  dictum;  Cowell  v. 
Phoenix  Ins.  Co.,  126  N.  C.  684, 
sale  of  land. 

In  an  action  for  damages  be- 
cause the  defendant  company 
had  failed  to  deliver  the  message 
which  would  have  created  a  profit- 
able contract  between  plaintiff  and 
a  third  person,  it  was  held  that 
the  company  had  no  defense  in  the 
fact  that,  because  of  the  Statute, 
plaintiff  could  not  have  enforced 
the  contract  had  the  message 
been  delivered.  Purdom  Naval 
Stores  Co.  v.  Western  Union  Tel. 
Co.,  153  Fed.  327;  Kratz  v.  Stocke, 
42  Mo.  351. 

A  written  contract  for  sale  of 
land  on  condition  that  it  has  not 
already  been  sold  can  not  be  en- 
forced if  there  had  been  in  fact  a 
previous  sale,  even  though  that 
sale  itself  was  oral  only  and  not 
enforcible  because  of  the  Statute. 
Jacob  V.  Smith,  28  Ky.  380;  Bo- 
hannon  v.  Pace,  36  Ky.  194.  The 
rights  of  creditors  to  set  up  the 
Statute  are  noted  hereafter. 

In  possible  conflict  with  this 
principle,  that  a  third  person  can 


not  take  advantage  of  the  statute, 
are  the  cases  cited  in  the  follow- 
ing notes. 

150 — First  National  Bk.  v.  Blair 
State  Bk.,  80  Neb.  400,  127  Am. 
St.  752.  The  reason  given  in  this 
case  is  not  that  the  second  buyer 
is  in  privity  with  his  seller  in  rela- 
tion to  the  first  contract,  but  the 
seller,  in  making  the  second  sale, 
"repudiates  and  avoids"  the  first 
contract. 

In  Mahan  v.  U.  S.,  16  Wall.  143, 
the  government,  as  confiscator  of 
cotton  alleged  to  be  the  property 
of  A,  was  allowed  to  set  up  the 
Statute  in  defense  to  a  claim  by 
B  that  the  cotton  had  previously 
been  sold  to  her  by  oral  contract. 
The  theory  appears  to  be,  how- 
ever, that  the  Statute  made  the 
sale  void. 

Sonneman  v.  Mertz,  221  111.  362. 

In  Petty  v.  Petty,  4  B.  Monroe 
(Ky.)  215,  39  Am.  Dec.  501,  it  was 
held,  without  reason  given,  that 
heirs  of  land  could  set  up  the 
statute  against  an  oral  contract 
made  by  their  father  on  consider- 
ation of  marriage.  Accord, 
Vaughn  v.  Vaughn,  100  Tenn.  282, 
45  S.  W.  677;  Sebben  v.  Tteze- 
vant,  3  Desaus.  (S.  C.)  213. 


282  THE  LAW  OF  SALES 

up  the  Statute  to  derogate  the  effect  of  the  contract."^ 

As  a  Defense. — In  another  way,  also,  oral  contracts 
within  the  Statute  have  in  fact  been  allowed  to  be  good 
even  as  between  the  parties.  This  is  the  case  in  which 
suit  on  a  provable  contract  is  defeated  by  showing  that 
such  written,  or  otherwise  provable  contract,  has  been 
rescinded  through  the  substitution  of  a  later  oral  con- 
tract. Even  though  the  later  contract  is  within  the  Stat- 
ute and  suit  could  not  be  brought  upon  it,  some  courts 
have  nevertheless  recognized  its  effect  as  putting  an  end 
to  the  original  contract  for  which  it  was  substituted."^ 


151 — Cresswell  v.  McCaig,  11 
Neb.  222;  Cahill  v.  Bigelow,  18 
Pick.  (Mass.)  369;  Gordon  v. 
Tweedy,  71  Ala.  202  land;  Brown 
V.  Rawlings,  72  Ind.  505  land; 
Minus  V.  Morse,  15  O.  568,  45  Am. 
Dec.  90  land. 

An  assignee  for  benefit  of  credi- 
tors can  not  set  up  tbe  statute  if 
the  seller,  his  assignor,  himself 
does  not,  Walker's  Assignee  v. 
Walker,  21  Ky.  L.  R.  1521. 

In  Waite  v.  McKelvey,  71  Minn. 
167,  however,  it  was  held  that  a 
sheriff  who  had  levied  on  chattels 
acquired  all  the  title  that  the 
judgment  debtor — the  seller — had, 
and  therefore  could  set  up  the 
statute  against  an  alleged  buyer 
under  an  oral  contract.  The  theory 
was  that  the  statute  made  the  con- 
tract void. 

152— Reed  v.  McGrew,  5  O.  376, 
sale  of  land;  Dearborn  v.  Cross,  7 
Cow.  (N.  Y.)  48,  sale  of  land. 

In  general,  a  contract  within  the 
statute  may  be  proved  as  a  de- 
fense to  an  action  on  the  common 
counts,  Laffey  v.  Kaufman,  134 
Cal.  391;  Weber  v.  Weber,  —  Ky. 
— ,  76  S.  W.  507;  Schechinger  v. 
Gault,  35  Okla.  416.  though  Statute 


made  It  "invalid";  McKinnie  v. 
Harvie,  28  Minn.  18;  Sims  v. 
Hutchins,  8  S.  &  M.  (Miss.)  328; 
Philbrook  v.  Belknap,  6  Vt.  383. 

In  Morris  v.  Baron  &  Co.,  H.  of 
L.  87  L.  J.  R.  (K.  B.)  145,  an  oral 
contract  for  sale  of  goods  was  held 
sufficient  to  defeat  a  prior  en- 
forcible  contract  for  sale  of  goods 
for  which  the  latter  had  been  sub- 
stituted. A  positive  action  on  the 
latter  contract  was  refused.  Some 
stress  is  given  to  the  fact  that 
the  particular  statute  here  in- 
volved provided  only  that  oral 
contracts  should  not  "be  enforced 
by  action." 

The  question  of  whether  a  con- 
tract of  sale  can  be  rescinded  or 
altered  by  a  later  agreement  not 
in  writing  is  not  peculiar  to  con- 
tracts of  sale,  nor  in  any  way  re- 
lated to  the  statute  of  frauds.  It 
Is  merely  the  general  question  as 
to  whether  any  contract  which  is 
itself  required  to  be  in  writing  can 
be  altered  by  subsequent  oral  con- 
tract. The  Statute  of  Frauds  it- 
self does  not  cover  the  question. 
There  is  considerable  conflict  in 
the  decisions  on  the  question. 

Rescission    by    oral    agreement 


THE  STATUTE  OF  FRAUDS 


283 


In  various  other  respects,  also,  courts  have  given  effect 
to  a  contract  on  which  no  action  could  have  been  main- 
tained directly."^ 

On  the  other  hand,  if  the  Statute  is  intended  to  pre- 
vent perjury,  rather  than  merely  to  protect  property 
rights, ^^*  the  damage  is  equally  great  whether  a  contract 
is  sued  on  or  is  set  up  in  defense.  For  this  reason  other 
courts  have  refused  to  admit  evidence  of  an  oral  contract 
within  the  Statute  even  by  way  of  defense."^ 


was  recognized  in  Proctor  v. 
Thompson,  13  Abbott,  N.  C.  (N. 
Y.)  340. 

Oral  extension  of  time  was  al- 
lowed in  Neppach  v.  Oregon  etc. 
R.  R.,  46  Ore.  374,  7  Ann.  Gas. 
1035,  in  which  much  conflicting 
authority  is  cited. 

153 — Such  is  its  use  to  show 
value  in  an  action  on  quasi-con- 
tract. Murphy  v.  DeHaan,  116  la. 
61,  although  statute  provided  that 
"no  evidence  should  be  given"  of 
such  contracts. 

Contra,  because  made  "void," 
Sutton  V.  Rowley,  44  Mich.  112. 

To  show  the  amount  of  rent  due, 
Evans  v.  Winona  Lumber  Co.,  30 
Minn.  515;  Steele  v.  Anheuser- 
Busch  Ass'n,  57  Minn.  18. 

To  show  amount  of  damage, 
Bumis  v.  Hines,  94  Va,  413. 


For  various  other  purposes. 
Michels  V.  West,  109  m.  Ap.  418; 
Coughlin  V.  Knowles,  7  Mete. 
(Mass.)   57. 

154 — "The  statute  of  frauds  and 
perjuries  (was)  a  great  and  neces- 
sary security  to  private  property", 
Blackstone,  Commentaries,  Bk.  4, 
*p.  440. 

155 — Scotten  v.  Brown,  4  Har. 
(Del.)  324;  Bernier  v.  Cabot  Mfg. 
Co.,  71  Me.  506;  King  v.  Welcome, 
5  Gray  (Mass.)  41,  statute  provid- 
ed only  that  "no  action  shall  be 
brought";  Zeuske  v.  Zeuske,  55 
Ore.  65,  Ann.  Cas.  1912  A  557; 
Nelson  v.  Shelby  Mfg.  Co.,  96  Ala. 
515,  statute  made  contract  "void"; 
Lemon  v.  Randall,  124  Mich.  687, 
id.;  Salb  v.  Campbell,  65  Wis.  405; 
Kelley  v.  Thompson,  181  Mass. 
122,  not  allowed  by  way  of  estab- 
lishing a  set-off. 


UNIFORM  SALES  ACT 


Uniform  legislation  called  the  Uniform  Sales  Act  has 
been  enacted  in  a  number  of  states  in  an  attempt  to 
eliminate  diversity  of  judicial  rulings  in  regard  to  sales 
and  contracts  to  sell.  This  Uniform  Act  was  approved 
by  the  National  Conference  of  Commissioners  on  Uni- 
form States  Laws  in  1906.  Since  that  time  it  has  been 
adopted,  with  some  minor  changes,  in  the  follow^ing  states 
and  territories :  Alaska,  1913 ;  Arizona,  1907  ;  Connecti- 
cut, 1907;  Illinois,  1915;  Iowa,  1919;  Maryland,  1910; 
Massachusetts,  1908;  Michigan,  1913;  Minnesota,  1917; 
Nevada,  1915 ;  New  Jersey,  1907 ;  New  York,  1911 ;  North 
Dakota,  1917;  Ohio,  1908;  Oregon,  1919;  Pennsylvania, 
1915 ;  Ehode  Island,  1908 ;  Tennessee,  1919 ;  Utah,  1917 ; 
Wisconsin,  1911 ;  Wyoming,  1917. 

The  following  is  the  text  of  the  Uniform  Act  as  pre- 
sented by  the  Commissioners.  Under  each  section  are 
digested  such  decisions  as  seem  to  interpret,  clarify,  or 
apply  the  rule.  These  citations,  however,  do  not  purport 
to  be  a  complete  reference  to  the  cases  decided  under  the 
Act.  For  fuller  citation  of  such  decisions  the  reader  is 
referred  to  ''The  Uniform  State  Laws,  Annotated,"  by 
C.  T.  Terry  and  to  ''Some  Reasons  Why  the  Code  States 
Should  Adopt  the  Uniform  Sales  Act,"  by  Lauriz  Void, 
in  6  Calif.  L.  R.  37.  Not  all  of  these  decisions  refer  ex- 
pressly to  the  Act,  but  they  are  assumed  to  have  been 
made  ^\^th  reference  to  it,  because  they  were  rendered 
subsequent  to  its  adoption  in  the  particular  state — ad- 
mittedly a  somewhat  dubious  assumption. 

It  seems  unnecessary  for  the  author  himself  to  under- 
take conoments  on  the  Act.     The  reader  can  interpret  it 

285 


286  UNIFORM  SALES  ACT 

equally  well  for  himself  through  a  comparison  of  its  pro- 
visions with  the  relevant  rules  of  the  Common  Law  as 
set  out  in  the  preceding  text.  To  facilitate  this,  the  re- 
lated sections  of  the  Act  are  noted  throughout  the  text. 
The  purpose  of  the  Act  is  to  procure  uniformity  of 
rule  and  it  should  be  so  interpreted.  (See  sections  73 
and  74.) 


AN  ACT  TO  MAKE  UNIFORM  THE  LAW  OF 
SALES  OF  GOODS 


PART  I 

Formation  of  the  Contract 

Section  1. — Contracts  to  Sell  and  Sales. — (1.)  A  con- 
tract to  sell  goods  is  a  contract  whereby  the  seller  agrees 
to  transfer  the  property  in  goods  to  the  buyer  for  a  con- 
sideration called  the  price. 

(2.)  A  sale  of  goods  is  an  agreement  whereby  the  seller 
transfers  the  property  in  goods  to  the  buyer  for  a  con- 
sideration called  the  price. 

(3.)  A  contract  to  sell  or  a  sale  may  be  absolute  or 
conditional. 

(4.)  There  may  be  a  contract  to  sell  or  a  sale  between 
one  part  owner  and  another. 

Furnishing  of  food  in  a  restaurant  is  not  a  "sale"  either  at  com- 
mon law  or  under  the  Act,  Merrill  v.  Hodson,  88  Conn.  314. 

But  compare,  Friend  v.  Childs  Co.,  Mass.,  120  N.  E.  407;  Barring- 
ton  V.  Hotel  Astor,  171  N.  Y.  S.  840. 

"Passing  of  title  (is)  the  cardinal  difference  between  sale  and 
the  relation  of  principal  and  factor."  Act  not  mentioned.  McGraw 
V.  Hanway,  120  Md.  197. 

A  "sale"  requires  "transfer  of  the  general  or  absolute  property  as 
distinguished  from  a  special  property."  Act  not  mentioned.  In  re 
Grand  Union  Co.,  (N.  Y.)  219  Fed.  353. 

Section   2. — Capacity — Liabilities   for   Necessaries. — 

Capacity  to  buy  and  sell  is  regulated  by  the  general  law 
concerning  capacity  to  contract,  and  to  transfer  and 
acquire  property. 

Where  necessaries  are  sold  and  delivered  to  an  infant, 
or  to  a  person  who  by  reason  of  mental  incapacity  or 

287 


288  UNIFORM  SALES  ACT 

drunkenness  is  incompetent  to  contract,  he  must  pay  a 
reasonable  price  therefor. 

Necessaries  in  this  section  mean  goods  suitable  to  the 
condition  in  life  of  such  infant  or  other  person,  and  to  his 
actual  requirements  at  the  time  of  delivery. 

FOBMALITIES  OF  THE  CONTRACT 

Section  3. — Form  of  Contract  or  Sale. — Subject  to  the 
provisions  of  this  act  and  of  any  statute  in  that  behalf, 
a  contract  to  sell  or  a  sale  may  be  made  in  writing 
(either  with  or  without  seal),  or  by  word  of  mouth,  or 
partly  in  writing  and  partly  by  word  of  mouth,  or  may 
be  inferred  from  the  conduct  of  the  parties. 

(See  related  provisions  of  the  next  section.) 

Section  4. — Statute  of  Frauds. — (1.)  A  contract  to  sell 
or  a  sale  of  any  goods  or  choses  in  action  of  the  value  of 
five  hundred  dollars  or  upwards  shall  not  be  enforceable 
by  action  unless  the  buyer  shall  accept  part  of  the  goods 
or  choses  in  action  so  contracted  to  be  sold  or  sold,  and 
actually  receive  the  same,  or  give  something  in  earnest 
to  bind  the  contract,  or  in  part  payment,  or  unless  some 
note  or  memorandum  in  writing  of  the  contract  or  sale 
be  signed  by  the  party  to  be  charged  or  his  agent  in  that 
behalf. 

Adoption  of  the  Act  repealed  the  existing  statute  of  frauds  making 
"void"  sales  of  $50  or  more  in  value.     Eigen  v.  Rosolin,  85  N.  J.  L.  515. 

A  contract  whereby  the  parties  agree  to  purchase  property  jointly 
from  a  third  person  and  each  to  provide  a  part  of  the  funds  therefor 
is  not  a  "contract  of  sale",  even  though  the  goods  are  to  be  divided  in 
specie.  There  is  a  distinction  between  such  agreements  that  the  title 
shall  come  to  the  parties  jointly  and  contracts  whereby  one  agrees  to 
take  title  himself  and  thereafter  transfer  an  interest  to  the  other. 
Stock  V.  Roth  Bros.  Co.,  162  Wis.  281. 

When,  under  a  single  contract  of  sale  in  which  the  seller  agrees 
to  buy  back  the  goods,  there  is  receipt  and  acceptance  of  the  goods 
by  the  buyer,  the  statute  is  so  far  satisfied  that  the  buyer  can  enforce 
the  seller's  agreement  to  buy  back.     Armstrong  v.  Orler,  220  Mass.  112. 

Payment  of  part  of  price  takes  an  oral  contract  out  of  the  statute. 
Meyer  v.  Shapton,  178  Mich.  417. 


UNIFORM  SALES  ACT  289 

The  memorandum  may  consist  of  various  papers  connected  by  refer- 
ence and  "it  matters  not  how  informal  or  bunglingly  constructed  the 
writing  may  be."     Spiegel  v.  Lowenstein,  147  N.  Y.  S.  655. 

The  memorandum  must  show  the  agreement  as  entered  into,  with 
all  its  terms  and  conditions.  Bauman  v.  Mendell  Lunepp  Co.,  153 
N.  Y.  S.  896. 

Action  for  purchase  price  of  tar.  Plaintiffs  admitted  that  they  had 
agreed  to  furnish  tar  which  should  be  satisfactory  to  highway  com- 
missioner. The  written  memorandum  did  not  contain  this  provision. 
Held,  memorandum  insuflEicient  to  satisfy  the  statute.  Barrett  Mfg. 
Co.  V.  Ambrosio,  Conn.,  96  Atl.  930. 

Printed  signature,  delivered  by  the  defendant,  is  sufBcient.  Goldo- 
witz  V.  Kupfer  &  Co.,  141  N.  Y.  S.  531. 

Signature  by  agent  in  his  own  name  is  sufficient  to  bind  his  prin- 
cipal.    Hager  v.  Henneberger,  145  N.  Y.  S.  152. 

A  sale  of  corporate  stock  is  within  the  statute.  De  Nunzio  v.  De- 
Nunzio,  90  Conn.  342,  97  Atl.  323. 

Growing  crops  are  within  the  statute.  Willard  v.  Higdon,  123 
Md.  447. 

Sale  of  a  house,  then  a  part  of  the  realty,  to  be  removed  by  the  buyer. 
Held,  if  title  was  to  pass  before  severance  it  was  a  sale  of  realty,  other- 
wise of  personalty.  Fact  that  buyer  is  to  do  the  severing  is  important 
only  in  determining  the  intent  as  to  when  title  was  to  pass.  Held  error 
to  exclude  evidence  as  to  such  real  intent.  Wetkopski  v.  N.  H.  Gas 
Co.,  88  Conn.  1. 

(2.)  The  provisions  of  this  section  apply  to  every 
such  contract  or  sale,  notwithstanding  the  goods 
may  be  intended  to  be  delivered  at  some  future  time  or 
may  not  at  the  time  of  such  contract  or  sale  be  actually 
made,  procured,  or  provided,  or  fit  or  ready  for  deliv- 
ery, or  some  act  may  be  requisite  for  the  making  or  com- 
pleting thereof,  or  rendering  the  same  fit  for  dehvery; 
but  if  the  goods  are  to  be  manufactured  by  the  seller 
especially  for  the  buyer  and  are  not  suitable  for  sale  to 
others  in  the  ordinary  course  of  the  seller's  business,  the 
provisions  of  this  section  shall  not  apply. 

As  to  sale  of  wheat,  etc.,  to  be  threshed,  shucked,  or  gathered, 
the  Act  changes  the  prior  rule  and  such  contracts  are  now  within  the 
statute.     Willard  v.  Higdon,  123  Md.  447. 

A  contract  to  manufacture  a  suit  of  clothes  from  cloth  of  a  special 
pattern  is  covered  by  the  exception  and  need  not  be  in  writing. 
Schneider  v.  Lezinsky,  162  N.  Y.  S.  769. 

Sale  of  clothing  to  be  made  out  of  existing  cloth  held  not  within 
the  statute;  the  Act  was  not  mentioned.  Davis  v.  Blanchard,  138 
N.  Y.  S.  202. 


290  UNIFORM  SALES  ACT 

(3.)  There  is  an  acceptance  of  goods  within  the  mean- 
ing of  this  section  when  the  buyer,  either  before  or  after 
delivery  of  the  goods,  expresses  by  words  or  conduct 
his  assent  to  becoming  the  owner  of  those  specific  goods. 

Acceptance  may  precede  delivery.  Laundry  Co.  v.  Whitmore,  92 
0.  S.  44,  dictum. 

The  Act  "seems  to  separate  acceptance  from  receipt  and  provide 
that  the  former  requirement  may  be  satisfied  by  words  or  conduct, 
while  the  latter  presupposes  a  delivery  by  the  seller  and  requires  some 
intentional  act  of  receipt  on  the  part  of  the  purchaser."  But  such 
actual  receipt,  whether  before  or  after  the  acceptance,  is  essential. 
Friedman  v.  Pious,  158  Wis.  435. 

Whether  or  not  acceptance  and  receipt  have  taken  place  is  a 
question  of  fact  for  the  jury.  Laundry  Co.  v.  Whitmore,  92  O.  S.  44; 
Friedman  v.  Pious,  158  Wis.  435,  although  the  finding  of  the  jury  may 
be  reversed  for  lack  of  evidence. 


Subject  Matter  of  Contract 

Section  5. — Existing  and  Future  Goods. — (1.)  The 
goods  which  form  the  subject  of  a  contract  to  sell  may 
be  either  existing  goods,  0"\vned  or  possessed  by  the 
seller,  or  goods  to  be  manufactured  or  acquired  by  the 
seller  after  the  making  of  the  contract  to  sell,  in  this  act 
called  ''future  goods." 

(2.)  There  may  be  a  contract  to  sell  goods,  the  acquisi- 
tion of  which  by  the  seller  depends  upon  a  contingency 
which  may  or  may  not  happen. 

(3.)  Where  the  parties  purport  to  effect  a  present 
sale  of  future  goods,  the  agreement  operates  as  a  contract 
to  sell  the  goods. 

Section  6. — Undivided  Shr.res. — (1.)  There  may  be  a 
contract  to  sell  or  a  sale  of  an  undivided  share  of  goods. 
If  the  parties  intend  to  effect  a  j)reseiit  sale,  the  buyer,  by 
force  of  the  agreement,  becomes  an  owner  in  common 
with  the  owner  or  owners  of  the  remaining  shares. 

(2.)  In  the  case  of  fungible  goods,  there  may  be  a 
sale  of  an  undivided  share  of  a  specific  mass,  though  the 
seller  purports  to  sell  and  the  buyer  to  buy  a  definite  num- 


UNIFORM  SALES  ACT  291 

ber,  weight  or  measure  of  the  goods  in  the  mass,  and 
though  the  number,  weight  or  measure  of  the  goods  in  the 
mass  is  undetermined.  By  such  a  sale  the  buyer  becomes 
o\Mier  in  common  of  such  a  share  of  the  mass  as  the 
number,  weight  or  measure  bought  bears  to  the  numbrer, 
weight  or  measure  of  the  mass.  If  the  mass  contains  less 
than  the  number,  weight  or  measure  bought,  the  buyer 
becomes  the  owner  of  the  whole  mass  and  the  seller  is 
bound  to  make  good  the  deficiency  from  similar  goods 
unless  a  contrary  intent  appears. 

Section  7. — Destruction  of  Goods  Sold. — (1.)  Where 
the  parties  purport  to  sell  specific  goods,  and  the  goods 
without  the  knowledge  of  the  seller  have  wholly  perished 
at  the  time  when  the  agreement  is  made,  the  agreement 
is  void. 

(2.)  Where  the  parties  purport  to  sell  specific  goods, 
and  the  goods  without  the  knowledge  of  the  seller  have 
perished  in  part  or  have  wholly  or  in  a  material  part  so 
deteriorated  in  quality  as  to  be  substantially  changed  in 
character,  the  buyer  may  at  his  option  treat  the  sale — 

(a.)     As  avoided,  or 

(b.)  As  transferring  the  property  in  all  of  the  exist- 
ing goods  or  in  so  much  thereof  as  have  not  deteriorated, 
and  as  binding  the  buyer  to  pay  the  full  agreed  price  if 
the  sale  was  indivisible,  or  to  pay  the  agreed  price  for  the 
goods  in  which  the  property  passes  if  the  sale  was 
divisible. 

Section  8. — Destruction  of  Goods  Contracted  to  be 
Sold. — (1.)  Where  there  is  a  contract  to  sell  specific 
goods,  and  subsequently,  but  before  the  risk  passes  to  the 
buyer,  without  any  fault  on  the  part  of  the  seller  or  the 
buyer,  the  goods  wholly  perish,  the  contract  is  thereby 
avoided. 

(2.)  W^here  there  is  a  contract  to  sell  specific  goods, 
and  subsequently,  but  before  the  risk  passes  to  the  buyer, 
without  any  fault  of  the  seller  or  the  buyer,  part  of  the 


292  UNIFORM  SALES  ACT 

goods  perish,  or  the  whole  or  a  material  part  of  the 
goods  so  deteriorate  in  quality  as  to  be  substantially 
changed  in  character,  the  buyer  may  at  his  option  treat 
the  contract — 

(a.)     As  avoided,  or 

(b.)  As  binding  the  seller  to  transfer  the  property  in 
all  of  the  existing  goods  or  in  so  much  thereof  as  have  not 
deteriorated,  and  as  binding  the  buyer  to  pay  the  full 
agreed  price  if  the  contract  was  indivisible,  or  to  pay  the 
agreed  price  for  so  much  of  the  goods  as  the  seller,  by 
the  buyer's  option,  is  bound  to  transfer  if  the  contract 
was  divisible. 

The  Price 

Section  9. — Definition  and  Ascertainment  of  Price. — 
(1.)  The  price  may  be  fixed  by  the  contract,  or  may  be 
left  to  be  fixed  in  such  manner  as  may  be  agreed,  or  it 
may  be  determined  by  the  course  of  dealing  between  the 
parties. 

(2.)  The  price  may  be  made  payable  in  any  personal 
property. 

(3.)  Where  transferring  or  promising  to  transfer  any 
interest  in  real  estate  constitutes  the  whole  or  part  of  the 
consideration  for  transferring  or  for  promising  to  trans- 
fer the  property  in  goods,  this  act  shall  not  apply. 

(4.)  "VVliere  the  price  is  not  determined  in  accordance 
with  the  foregoing  provisions  the  buyer  must  pay  a  rea- 
sonable price.  What  is  a  reasonable  price  is  a  question 
of  fact  dependent  on  the  circumstances  of  each  particular 
case. 

Section  10. — Sale  at  a  Valuation. — (1.)  Where  there 
is  a  contract  to  sell  or  a  sale  of  goods  at  a  price  or  on 
terms  to  be  fixed  by  a  third  person,  and  such  third  person 
without  fault  of  the  seller  or  the  buyer,  cannot  or  does 
not  fix  the  price  or  terms,  the  contract  or  the  sale  is  there- 
by avoided ;  but  if  the  goods  or  any  part  thereof  have  been 
delivered  to  and  appropriated  by  the  buyer  he  must  pay 
a  reasonable  price  therefor. 


UNIFORM  SALES  ACT  293 

(2.)  Where  such  third  person  is  prevented  from  fix- 
ing the  price  or  terms  by  fault  of  the  seller  or  the  buyer, 
the  party  not  in  fault  may  have  such  remedies  against  the 
party  in  fault  as  are  allowed  by  Parts  IV  and  V  of 'this 
act. 

Conditions  and  Warranties 

Section  11.— Effect  of  Conditions.— (1.)  Where  the 
obligation  of  either  party  to  a  contract  to  sell  or  a  sale 
is  subject  to  any  condition  Avhich  is  not  performed,  such 
party  may  refuse  to  proceed  with  the  contract  or  sale  or 
he  may  waive  performance  of  the  condition.  If  the  other 
party  has  promised  that  the  condition  should  happen  or 
be  performed,  such  first  mentioned  party  may  also  treat 
the  non-performance  of  the  condition  as  a  breach  of 
warranty. 

Seller  allowed  to  refuse  delivery  of  current  installments  until 
buyer  had  paid  sums  already  due  according  to  contract.  Nat'l  Contract- 
ing Co.  V.  Vulcanite  etc.  Co.,  192  Mass.  247. 

Sec.  11  (1).  first  part,  applied,  Brought  v.  Redewell  Music  Co.,  17 
Ariz.  393 ;  Potter  Press  Co.  v.  Newark  Daily  etc.  Co.,  82  N.  J.  L.  671. 

Seller  is  not  in  default  until  buyer  has  performed  conditions  prece- 
dent to  seller's  liability.  Murphy  v.  Moon  Motor  Car  Co.,  131  N.  Y.  S. 
873. 

(2.)  Where  the  property  in  the  goods  has  not  passed, 
the  buyer  may  treat  the  fulfillment  by  the  seller  of  his 
obligation  to  furnish  goods  as  described  and  as  warranted 
expressly  or  by  implication  in  the  contract  to  sell  as  a  con- 
dition of  the  obligation  of  the  buyer  to  perform  his 
promise  to  accept  and  pay  for  the  goods. 

Whether  or  not  buyer  had  reasonable  time  in  which  to  test  the 
goods  left  to  the  jury.    Fechteler  v.  Whittemore,  205  Mass.  6. 

Description  of  cloth  to  be  manufactured  identifies  the  subject 
matter  of  the  contract  and  seller  can  not  recover  without  proof  that 
he  tendered  cloth  conforming  to  this  description.  This  condition 
precedent  to  recovery  called  a  "warranty."  Putnam-Hooker  Co.  v. 
Hewins,  204  Mass.  426. 

Section  12. — Definition  of  Express  Warranty. — Any 

afiirmation  of  fact  or  any  promise  by  the  seller  relating 
to   the  goods  is   an   express   warranty  if  the   natural 


294  UNIFORM  SALES  ACT 

tendency  of  such  afifirmation  or  promise  is  to  induce  the 
buyer  to  purchase  the  goods,  and  if  the  buyer  purchases 
the  goods  relying  thereon.  No  affirmation  of  the  value 
of  the  goods,  nor  any  statement  purporting  to  be  a  state- 
ment of  the  seller's  opinion  only  shall  be  construed  as  a 
warranty^ 

Section  13. — Implied  Warranties  of  Title. — ^In  a  con- 
tract to  sell  or  a  sale,  unless  a  contrary  intention  appears, 
there  is — 

(1.)  An  implied  warranty  on  the  part  of  the  seller 
that  in  case  of  a  sale  he  has  a  right  to  sell  the  goods 
at  the  time  when  the  property  is  to  pass ; 

(2.)  An  implied  warranty  that  the  buyer  shall  have 
and  enjoy  quiet  possession  of  the  goods  as  against  any 
lawful  claims  existing  at  the  time  of  the  sale; 

(3.)  An  implied  warranty  that  the  goods  shall  be 
free  at  the  time  of  the  sale  from  any  charge  or  encum- 
brance in  favor  of  any  third  person,  not  declared  or 
known  to  the  buyer  before  or  at  the  time  when  the  con- 
tract or  sale  is  made. 

(4.)  This  section  shall  not,  however,  be  held  to  ren- 
der liable  a  sheriff,  auctioneer,  mortgagee,  or  other  per- 
son professing  to  sell  by  virtue  of  authority  in  fact  or 
law,  goods  in  which  a  third  person  has  a  legal  or  equit- 
able interest. 

Followed,  Hartley  v.  Rotman,  200  Mass.  372. 

An  outstanding  mortgage  of  which  buyer  knows  is  not  a  breach 
of  implied  warranty  of  title;  Act  not  mentioned.  Dreisbach  v.  Eckel- 
kamp,  82  N.  J.  L.  726. 

Warranty  of  title  is  not  negatived  by  seller's  lack  of  possession. 
Kirkpatrick  v,  Kepler,  164  Wis.  558. 

Section  14. — Implied  Warranty  in  Sale  by  Description. 

— Where  there  is  a  contract  to  sell  or  a  sale  of  goods  by 
description,  there  is  an  implied  warranty  that  the  goods 
shall  correspond  with  the  description  and  if  the  contract 
or  sale  be  by  sample,  as  well  as  by  description,  it  is  not 
sufficient  that  the  bulk  of  the  goods  corresponds  with  the 


UNIFORM  SALES  ACT  295 

sample  if  the  goods  do  not  also  correspond  with  the  de- 
scription. 

The  warranty  implied  from  description  may  be  negatived  by 
express  statement  that  there  is  no  warranty;  also  by  a  known  custom 
among  dealers  to  refuse  a  warranty.  Ross  v.  Northrup  &  Co.,  156 
Wis.  327. 

Declared  to  be  a  mere  codification  of  the  common  law,  Lissberger 
V.  Kellogg,  78  N.  J.  L.  85. 

Section  15.~Implied  Warranties  of  Quality.— Subject 
to  the  provisions  of  this  act  and  of  any  statute  in  that 
behalf,  there  is  no  implied  warranty  or  condition  as  to 
the  quality  or  fitness  for  any  particular  purpose  of  goods 
supplied  under  a  contract  to  sell  or  a  sale,  except  as 
follows : 

(1.)  Where  the  buyer,  expressly  or  by  implication, 
makes  known  to  the  seller  the  particular  purpose  for 
which  the  goods  are  required,  and  it  appears  that  the 
buyer  rehes  on  the  seller's  skill  or  judgment  (whether 
he  be  the  grower  or  manufacturer  or  not),  there  is  an 
implied  warranty  that  the  goods  shall  be  reasonably  fit 
for  such  purpose. 

(2.)  Where  the  goods  are  bought  by  description  from 
a  seller  who  deals  in  goods  of  that  description  (whether 
he  be  the  grower  or  manufacturer  or  not),  there  is  an 
implied  warranty  that  the  goods  shall  be  of  merchant- 
able quality. 

(3.)  If  the  buyer  has  examined  the  goods,  there  is 
no  implied  warranty  as  regards  defects  which  such  exam- 
ination ought  to  have  revealed. 

(4.)  In  the  case  of  a  contract  to  sell  or  a  sale  of  a 
specified  article  under  its  patent  or  other  trade  name, 
there  is  no  implied  warranty  as  to  its  fitness  for  any 
particular  purpose. 

(5.)  An  implied  warranty  or  condition  as  to  quality 
or  fitness  for  a  particular  purpose  may  be  annexed  by 
the  usage  of  trade. 

(6.)     An  express  warranty  or  condition  does  not  nega- 


296  UNIFORM  SALES  ACT 

tive  a  warranty  or  condition  implied  under  this  act  un- 
less inconsistent  therewith. 

(1.)  Followed  and  applied,  Brought  v.  Redewill  Music  Co.,  17 
Ariz.  393. 

(1.)  There  is  an  implied  warranty  that  a  machine  built  for  a 
special  purpose  will  do  the  work  expected  of  it.  Act  not  mentioned. 
Kelsey  v.  J.  W.  Ringrose  Co.,  152  Wis.  499. 

A  warranty  of  quality  may  be  implied  by  custom  even  when  the 
sale  is  of  specific  articles.    Proctor  v.  Atlantic  Fish  Co.,  208  Mass.  351. 

(1.)  (3.)  One  who  bought  chops  from  a  butcher,  allowing  the 
butcher  to  select  them,  held  to  have  so  relied  on  the  seller's  knowledge 
as  to  raise  an  implied  warranty  of  their  fitness  for  food.  Gearing  v. 
Berkson,  223  Mass.  257. 

(6.)  Accord,  warranty  of  merchantability  implied;  Act  not  men- 
tioned.    Wolverine  Spice  Co.  v.  Fallow,  182  Mich.  361. 

(1.)  There  is  no  implied  warranty  of  fitness  in  a  sale  of  specific 
goods  by  one  dealer  in  meats  to  another  such  dealer.  Baker  v. 
Kamantowsky,  188  Mich.  589. 

Followed,  Pentland  v.  Jacobson,  189  Mich.  339. 

(4.)  Sale  of  coal  under  a  trade  name  does  not  imply  any  fitness 
for  purpose  for  which  seller  is  aware  that  buyer  intends  it.  Based 
on  common  law  as  well  as  Act.  Quemahoning  Coal  Co.  v.  Sanitary 
etc.  Co.,  88  N.  J.  L.  174. 

The  furnishing  of  food  in  a  restaurant  is  not  a  "sale"  and  therefore 
sec.  15  of  the  Act  does  not  apply.    Merrill  v.  Hodson,  88  Conn.  314. 

There  is  no  implied  warranty  of  fitness  for  purpose  where  article 
is  specific  and  parties  deal  on  equal  terms;  Act  not  mentioned.  Com- 
mercial Realty  Co  v.  Dorsey,  114  Md.  172. 

(1.)  Seller  of  ice  cream  held  impliedly  to  have  warranted  it  fit 
for  consumption.    Race  v.  Krum,  147  N.  Y.  S.  818. 

Sale  of  a  stallion  for  breeding  purposes;  seller  not  himself  a 
breeder  of  horses.  Held,  no  implied  warranty  of  fitness;  Act  not 
mentioned.     Thompson  v.  Miser,  82  O.  S.  289. 

Sale  of  preserve  jar  caps  under  trade  name  of  "Sure-Seal"  does  not 
imply  any  warranty  of  fitness  for  known  purpose.  Sure  Seal  Co.  v. 
Loeber,  157  N.  Y.  S.  327. 

"Gasoline"  is  a  generic  name  and  a  sale  thereof  does  not  negative 
an  implied  warranty  of  fitness.  Berry  v.  Wadhams  Oil  Co.,  156 
Wis.  588. 

Sale  of  vacuum  cleaners  under  a  trade  name  gives  rise  to  no 
implied  warranty  of  fitness.  Ohio  Elec.  Co.  v.  Wisconsin  etc.  Co.,  161 
Wis.  632. 

Sale  by  Sample 

Section  16. — Implied  Warranties  in  Sale  by  Sample. — 
Tn  the  case  of  a  contract  to  sell  or  a  sale  by  sample : 


UNIFORM  SALES  ACT  297 

(a)  There  is  an  implied  warranty  that  the  bulk  shall 
correspond  with  the  sample  in  quality. 

(b)  There  is  an  implied  warranty  that  the  buyer 
shall  have  a  reasonable  opportunity  of  comparing  the 
bulk  with  the  sample,  except  so  far  as  otherwise  pro- 
vided in  section  47  (3). 

(c)  If  the  seller  is  a  dealer  in  goods  of  that  kind, 
there  is  an  implied  warranty  that  the  goods  shall  be 
free  from  any  defect  rendering  them  unmerchantable 
which  would  not  be  apparent  on  reasonable  examination 
of  the  sample. 

(c.)  Followed,  on  common  law  authority,  West  End  Mfg.  Co.  v. 
Warren  Co.,  198  Mass.  320. 

Applied,  Gascoigne  v.  Cary  Brick  Co.,  217  Mass.  302. 

Promise  of  seller  to  furnish  goods  like  sample  called  an  "implied" 
warranty  that  they  should  be  like  sample.  Borden  v.  Fine,  212 
Mass.  425. 

Inference  that  goods  corresponding  to  sample  were  promised  by 
seller  held  negatived  by  other  circumstances  of  the  agreement.  Andro- 
vette  V.  Parks,  207  Mass.  86. 

Sale  of  potatoes  "like  sample".  Bulk  of  the  potatoes  were  in  fact 
like  sample,  but  sample  itself  was  unmarketable,  although  this  was  not 
discernible  by  the  buyer  on  ordinary  inspection.  Held,  breach  of  implied 
warranty  of  merchantability.    Steward  v.  Voll  &  Son,  81  N.  J.  L.  323. 

Sale  of  "pussy  willow"  satin,  "as  is,"  "like  sample".  Goods  delivered 
were  not  like  sample.  Held  term  "as  is"  was  not  inconsistent  with 
"like  sample"  and  there  was  a  breach  of  obligation.  Schwartz  v.  Kohn, 
155  N.  Y.  S.  547. 

PART  II 

Transfee  of  Peoperty  as  Between  Sellee  and  Buyer 

Section  17.— No  Property  Passes  Until  Goods  are 
Ascertained. — Where  there  is  a  contract  to  sell  unas- 
certained goods  no  property  in  the  goods  is  transferred 
to  the  buyer  unless  and  until  the  goods  are  ascertained, 
but  property  in  an  undivided  share  of  ascertained  goods 
may  be  transferred  as  provided  in  section  6. 

The  goods  sold  may  be  ascertained  by  linear  delimitation  on  a 
larger  mass  even  though  there  be  no  physical  separation.  Carroll  v. 
Haskins,  212  Mass.  593. 

Title  to  such  part  of  goods  contracted  for  as  is  specific  passes  at 


298  UNIFORM  SALES  ACT 

once;  title  to  such  part  as  is  not  specific  does  not  pass  until  speciflca- 
tion.     Bondy  v.  Hardina,  216  Mass.  44. 

Section  18. — Property  in  Specific  Goods  Passes  When 
Parties  so  Intend. — (1.)  Where  there  is  a  contract  to 
sell  specific  or  ascertained  goods,  the  property  in  them  is 
transferred  to  the  buyer  at  such  time  as  the  parties  to 
the  contract  intend  it  to  be  transferred. 

(2.)  For  the  purpose  of  ascertaining  the  intention  of 
the  parties,  regard  shall  be  had  to  the  terms  of  the  con- 
tract, the  conduct  of  the  parties,  usages  of  trade  and  the 
circumstances  of  the  case. 

"The  words,  'I  hereby  transfer  my  full  right  of  ownership  of 
*  *  *  ',  would  not  be  conclusive  of  the  title  in  the  defendant  in  eiror 
even  if  they  were  unqualified;  because  their  effect  must  be  determined 
by  the  intention  of  the  parties  as  disclosed  by  a  consideration  of  all 
the  facts  and  circumstances  of  the  transaction."  Piano  Co.  v.  Piano 
Co.,  85  O.  S.  196. 

In  Cassinelli  v.  Humphrey  Supply  Co.,  43  Nev.  208,  183  Pac.  523, 
property  described  as  "all  my  hay  except  30  tons"  was  held  "specific 
and  ascertained"  within  the  meaning  of  this  section — a  somewhat  sur- 
prising use  of  the  terms. 

Seller's  intent  to  pass  title  is  as  essential  as  buyer's  intent  to 
receive  it.  Atlantic  Bldg.  Supp.  Co.  v.  Vulcanite  etc.  Co.,  203  N.  Y. 
133,  96  N.  E.  370. 

Applied,  White  v.  Lansing  Chem.  Co.,  92  Conn.  186;  Dinsmore  v. 
Maag-Wohmann  Co.,  122  Md.  177;  Wilson  v.  International  Ry.  Co., 
160  N.  Y.  S.  367. 

Section  19. — Rules  for  Ascertaining  Intention. — Unless 
a  different  intention  appears,  the  following  are  rules  for 
ascertaining  the  intention  of  the  parties  as  to  the  time 
at  which  the  property  in  the  goods  is  to  pass  to  the  buyer. 

Rule  1. — ^Where  there  is  an  unconditional  contract  to 
sell  specific  goods,  in  a  deliverable  state,  the  property  in 
the  goods  passes  to  the  buyer  when  the  contract  is  made 
and  it  is  immaterial  whether  the  time  of  payment,  or 
the  time  of  delivery,  or  both,  be  postponed. 

"It  may  be  conceded  that  as  between  the  parties  where  there  has 
been  a  sale  of  specific  goods,  and  especially  where  the  price  has  been 
paid,  the  title  will  pass  without  a  delivery  of  the  goods."  Piano  Co, 
V.  Piano  Co..  85  O.   S.   196. 


UNIFORM  SALES  ACT  299 

Recognized  as  rules  of  presumption  only,  Cassinelli  v.  Humphrey 
Supply  Co.,  43  Nev.  208,  183  Pac.  523. 

Title  does  not  pass  if  anything  remains  to  be  done  by  the  seller 
to  ascertain  the  total  price,  Elder  v.  Insurance  Co.,  206  111.  App.  172. 

Rule  2. — Where  there  is  a  contract  to  sell  specific  goods 
and  the  seller  is  bound  to  do  something  to  the  goods,  for 
the  purpose  of  putting  them  into  a  dehverable  state,  the 
property  does  not  pass  until  such  thing  be  done. 

Automatic  Co.  v.  Automatic  Co.,  208  Mass.  252,  94  N.  E.  462,  sale 
of  "specific  goods"  to  be  completed.  Held,  no  title  passed  till  com- 
pletion, despite  words  of  present  sale.  Provision  of  Act  said  to  be 
an  enactment  of  the  common  law.  Distinguishes  prior  cases  wherein 
evident  intent  was  to  sell  goods  in  unfinished  state,  with  a  collateral 
contract  to  complete  them. 

Title  does  not  pass  if  something  remains  to  be  done  by  seller 
to  ascertain  total  price,  Elder  v.  Ins.  Co.,  206  111.  Ap.  172. 

A  rule  of  presumption  only,  Wright  v.  Frank  A.  Andrews  Co., 
212  Mass.  186,  98  N.  E.  798. 

It  will  be  noted  that  the  Act  does  not  state  any  presumption  as  aris- 
ing from  fact  that  seller  has  reserved  right  to  measure  goods  to  de- 
termine total  price.  In  this  respect  it  differs  from  the  English  Sales 
Act.  The  draftsman  of  the  American  Act,  Mr.  Samuel  Williston,  is  of 
opinion  that  the  presumption  of  intent  not  to  pass  title  in  such  case 
is  irrational  and  unsound.  The  Act  is,  therefore,  probably  intended  to 
exclude  such  a  presumption.  No  court  has  passed  on  it  to  the  writer's 
knowledge.  The  nearest  approach  is  Elder  v.  Insurance  Co.,  206  111. 
Ap.  172,  which  rather  confusedly  lays  down  the  common  law  presump- 
tion as  dictum,  but  does  not  refer  to  the  Act. 

Rule  3. — (1.)  When  goods  are  delivered  to  the  buyer 
'*on  sale  or  return,"  or  on  other  terms  indicating  an  in- 
tention to  make  a  present  sale,  but  to  give  the  buyer  an 
option  to  return  the  goods  instead  of  paying  the  price, 
the  property  passes  to  the  buyer  on  delivery,  but  he  may 
revest  the  property  in  the  seller  by  returning  or  tendering 
the  goods  within  the  time  fixed  in  the  contract,  or,  if  no 
time  has  been  fixed,  within  a  reasonable  time. 

Declaratory  of  the  common  law.  Geo.  A.  Ohl  &  Co.  v.  Barnet  Co., 
88  N.  J.  L.  45,  93  Atl.  715. 

Does  not  apply  where  there  is  no  contract  of  sale  at  all,  but  delivery 
of  possession  is  made  only  with  the  idea  of  eventually  negotiating 
a  sale,  Fox  v.  Proctor,  145  N.  Y.  S.  709,  160  App.  Div.  12. 

Applied,  Siegel  v.  Union  Ass.  Co.,  152  N.  Y.  S.  662,  90  Miscl.  550. 


300  UNIFORM  SALES  ACT 

(2.)  When  goods  are  delivered  to  the  buyer  on  ap- 
proval or  on  trial  or  on  satisfaction,  or  other  similar 
terms,  the  property  therein  passes  to  the  buyer — 

(a.)  "When  he  signifies  his  approval  or  acceptance  to 
the  seller  or  does  any  other  act  adopting  the  transac- 
tion; 

(b.)  If  he  does  not  signify  his  approval  or  acceptance 
to  the  seller,  but  retains  the  goods  without  giving  notice 
of  rejection,  then  if  a  time  has  been  fixed  for  the  return 
of  the  goods,  on  the  expiration  of  such  time,  and,  if  no 
time  has  been  fixed,  on  the  expiration  of  a  reasonable 
time.    What  is  a  reasonable  time  is  a  question  of  fact. 

Applied,  Emery  Thompson  Co.  v.  Graves,  Conn.,  98  Atl.  331;  Rice 
V.  Dinsmore,  124  Md.  276,  92  Atl.  847;  Dinsmore  v.  Rice,  128  Md.  209, 
97  Atl.  537. 

Rule  4. — (1.)  Where  there  is  a  contract  to  sell  unas- 
certained or  future  goods  by  description,  and  goods  of 
that  description  and  in  a  dehverable  state  are  uncondi- 
tionally appropriated  to  the  contract,  either  by  the  seller 
with  the  assent  of  the  buyer,  or  by  the  buyer  with  the 
assent  of  the  seller,  the  property  in  the  goods  thereupon 
passes  to  the  buyer.  Such  assent  may  be  expressed  or 
implied,  and  may  be  given  either  before  or  after  the 
appropriation  is  made. 

The  word  "appropriate",  as  here  used  undoubtedly  connotes  in- 
tent to  pass  the  title  as  well  as  intent  to  identify  property  to  which 
the  contract  is  to  apply.  The  section,  therefore,  does  not  offer  any 
solution  of  the  question  as  to  when  such  intent  may  be  assumed 
to  exist. 

Title  does  not  pass  to  unascertained  goods.  Chandler  etc.  Co.  v. 
Shea,  213  Mass.  398,  100  N.  E.  663;  Bondy  v.  Hardina,  216  Mass.  44, 
102  N.  E.  935. 

The  seller  must  intend  to  pass  title  as  well  as  the  buyer  to  take 
it.  Atlantic  Bldg.  Supp.  Co.  v.  Vulcanite  etc.  Co.,  203  N.  Y.  133, 
96  N.  E.  370. 

(2.)  Where,  in  pursuance  of  a  contract  to  sell,  the 
seller  delivers  the  goods  to  the  buyer,  or  to  a  carrier  or 
other  bailee  (whether  named  by  the  buyer  or  not)  for  the 
purpose  of  transmission  to  or  holding  for  the  buyer,  he 


UNIFORM  SALES  ACT  301 

is  presumed  to  have  unconditionally  appropriated  the 
goods  to  the  contract,  except  in  the  cases  provided  for  in 
the  next  rule  and  in  section  20.  This  presumption  is  ap- 
plicable, although  by  the  terms  of  the  contract,  the  buyer 
is  to  pay  the  price  before  receiving  delivery  of  the  goods, 
and  the  goods  are  marked  with  the  words  ''collect  on 
delivery ' '  or  their  equivalents. 

Title  passed  on  delivery  to  the  carrier,  Engemann  v.  D.  L.  &  W. 
R.  R.,  88  N.  J.  L.  45,  97  Atl.  152;  State  v.  Buyer,  93  O.  S.  72,  112 
N.  E.  197. 

Buyer  is  liable  in  case  of  loss,  "not  only  on  general  principles  of 
law,  but  under  Sales  Law,  sec.  127,"  Schanz  v.  Bramwell,  143  N.  Y. 
S.  1057. 

Goods  not  conforming  to  the  contract  were  delivered  to  the  carrier 
and  rejected  by  the  buyer.  Held  "title  never  passed  to"  buyer  and 
he  was  not  responsible  for  their  safe  return  to  seller,  Dube  v.  Liberty 
Clothing  Co.,  153  N.  Y.  S.  577,  91  Miscl.  64. 

Seller  can  not  after  delivery  to  carrier,  by  changing  consign- 
ment, retake  title.  McCollom  v.  Minn.  etc.  Ry.  Co.,  152  Wis.  435, 
139  N.  W.  1129. 

Delivery  to  a  local  express  company  named  by  buyer  held  to  pass 
title.  Levy  v.  Radkay,  233  Mass.  29,  123  N.  E.  97. 

Title  to  goods,  not  identified  at  the  making  of  the  contract,  was 
held  to  have  passed  to  the  buyer  through  the  seller's  delivery  to 
a  carrier,  notwithstanding  that  the  buyer  had  "attempted  to  repudi- 
ate" the  contract  before  shipment.  Home  Pattern  Co.  v.  Mertz,  88 
Conn.  22,  90  Atl.  33.  This  is  utterly  inconsistent  with  the  rule  that  title 
will  not  pass  without  buyer's  consent.  See  discussion  in  text  of  seller's 
right  of  action  for  purchase  price. 

In  sale  of  oil  to  be  manufactured,  held  that  title  passed  on 
delivery  into  cars  furnished  by  buyer  even  though  seller  then  con- 
signed the  cars  to  other  persons.  Held  also  that  title  passed  when 
oil  was  placed  in  seller's  own  tanks,  contract  providing  that  if  buyer 
failed  to  provide  cars,  seller  should  place  the  oil  in  its  tanks  for 
buyer.    Proctor  &  Gamble  Co.  v.  Peters,  White  &  Co.,  176  N.  Y.  S.  169. 

Rule  5. — If  the  contract  to  sell  requires  the  seller  to 
deliver  the  goods  to  the  buyer,  or  at  a  particular  place, 
or  to  pay  the  freight  or  cost  of  transportation  to  the 
buyer,  or  to  a  particular  place,  the  property  does  not 
pass  until  the  goods  have  been  delivered  to  the  buyer  or 
reached  the  place  agreed  upon. 

Goods  were  sold  at  a  stated  price  "less  freight".  Buyer  refused  to 
accept  goods  which  were  shipped  freight  collect.     Action  to  recover 


302  UNIFORM  SALES  ACT 

contract  price.  Held  title  had  passed  to  buyer  because  "while  the 
amount  undoubtedly  measured  what  the  buyer  would  have  to  pay  for 
carriage,  the  stipulation  could  be  found  to  have  been  intended  by  the 
parties  as  a  discount  from  the  seller's  regular  prices,  and  not  as  a 
prepayment  of  the  freight.  The  question  was  one  of  fact."  Twitchell- 
Champlin  Co.  v.  Radowsky,  207  Mass.  72. 

Whether  or  not  the  seller  is  to  deliver  to  a  particular  place 
and  who  is  to  pay  the  freight  are  questions  for  the  jury,  Engeman  v. 
D.  L.  &  W.  R.  R.,  88  N.  J.  L.  45,  97  Atl.  152. 

Garven  v.  N.  Y.  C.  &  H.  R.  R.  R.,  210  Mass.  275,  title  still  in  seller 
so  that  he  could  sue  carrier  for  negligence,  despite  delivery  to  carrier 
and  taking  of  bill  of  lading  in  buyer's  name,  because  seller  had  obli- 
gated himself  to  deliver  to  buyer.  See  also,  Barrie  v.  Quimby,  206 
Mass.  259,  92  N.  E.  451. 

Helbum  Leather  Co.  v.  Stone,  205  111.  App.  347,  title  held  to  have 
passed  to  buyer  on  arrival  of  goods  in  the  city  named  as  place  of 
delivery,  without  actual  delivery  of  possession  to  buyer  by  the 
carrier. 

Fact  that  carrier  got  its  boat  with  the  goods  aboard  to  buyer's 
dock  but  was  unable  to  land  because  dock  was  already  occupied, 
did  not  constitute  a  delivery  so  as  to  make  buyer  liable  for  loss, 
Westmoreland  Coal  Co  v.  Syracuse  Ltg.  Co.,  145  N.  Y.  S.  420,  159 
App.  Div.  323. 

Delivery  to  an  express  company  is  not  delivery  to  the  buyer  under 
this  section,  Hauptman  v.  Miller,  157  N.  Y.  S.  1104,  94  Miscl.  266, 
and  seller  can  sue  the  express  company,  Conroy  v.  Barrett,  158  N.  Y.  S. 
549,  95  Miscl.  247. 

Plaintiff  sold  codfish  to  defendant  "C.  I.  F." — which  was  interpreted 
to  mean  that  the  agreed  price  covered  cost  of  transportation  and  in- 
surance. Plaintiff  took  out  bill  of  lading  in  his  own  name.  Held,  fact 
that  seller  was  to  insure  was  evidence  of  the  "different  intention" 
referred  to  in  §19,  and  title  passed  despite  seller's  obligation  to  pay 
freight.    Smith  Co.  v.  Marano,  267  Pa.  107,  110  Atl,  94,  10  A.  L.  R.  697. 

Section  20. — Reservation  of  Right  of  Possession  or 
Property  When  Goods  Are  Shipped. 

(1.)  Where  there  is  a  contract  to  sell  specific  goods, 
or  where  goods  are  subsequently  appropriated  to  the 
contract,  the  seller  may,  by  the  terms  of  the  contract  or 
appropriation,  reserve  the  right  of  possession  or  prop- 
erty in  the  goods  until  certain  conditions  have  been  ful- 
filled. The  right  of  possession  or  property  may  be  thus 
reserved  notwithstanding  the  delivery  of  the  goods  to. 
the  buyer  or  to  a  carrier  or  other  bailee  for  the  purpose 
of  transmission  to  the  buyer. 


UNIFORM  SALES  ACT  303 

(2.)  Where  goods  are  shipped,  and  by  the  bill  of 
lading  the  goods  are  deliverable  to  the  seller  or  his  agent, 
or  to  the  order  of  the  seller  or  of  his  agent,  the  seller 
thereby  reserves  the  property  in  the  goods.  But  if,  except 
for  the  form  of  the  bill  of  lading,  the  property  would 
have  passed  to  the  buyer  on  shipment  of  the  goods,  the 
seller 's  property  in  the  goods  shall  be  deemed  to  be  only 
for  the  purpose  of  securing  performance  by  the  buyer 
of  his  obligations  under  the  contract. 

(3.)  "Where  goods  are  shipped,  and  by  the  bill  of 
lading  the  goods  are  deliverable  to  the  order  of  the 
buyer  or  of  his  agent,  but  possession  of  the  bill  of  lading 
is  retained  by  the  seller  or  his  agent,  the  seller  thereby 
reserves  a  right  to  the  possession  of  the  goods  as  against 
the  buyer. 

If  sale  is  of  specific  goods  title  passes  before  shipment  and  a 
subsequent  taking  of  bill  of  lading  in  seller's  name  "can  not  reserve 
a  title,"  but  only  "the  jus  disponendi."  Even  a  real  reservation  of 
"title"  by  taking  bill  of  lading  in  seller's  name  puts  the  risk  of 
loss  on  the  buyer,  because  of  section  22  of  the  Act,  read  in  connection 
with  section  20.  Alderman  Bros.  Co.  v.  Westinghouse  etc.  Co.,  92 
Conn.  419,  103  Atl.  267. 

Plaintiff,  as  seller,  had  shipped  melons  according  to  contract,  f.  o.  b. 
place  of  shipment,  bill  of  lading  making  them  deliverable  to  himself. 
The  melons  rotted  while  in  transit.  Held,  the  title  was  in  the  seller 
and  the  risk  of  loss  on  him.  No  reference  was  made  to  the  Act  and 
the  court  cited  such  authorities  as  Pittsburgh  etc.  Co.  v.  Cudahy 
Packing  Co.,  260  Pa.  135,  in  which  it  was  held  that  title  and  risk  of 
loss  were  seller's,  because  of  seller's  unfulfilled  obligation  to  deliver. 
Gilbert  v.  Ayoob,  71  Pa.  Sup.  Ct.  336. 

Unspecific  goods  sold,  seller  obligated  to  deliver  at  buyer's  town; 
goods  shipped  by  bill  of  lading  in  name  of  seller's  agent;  bill  of  lading 
presented  but  neither  paid  nor  refused;  goods  destroyed;  held  "title" 
was  in  buyer  and,  also,  risk  of  loss  was  on  him.  Kinney  v.  Horwitz, 
93,  Conn.  211,  105  Atl.  438.  It  may  be  observed  that  adoption  of  the  Act 
has  not  altogether  produced  consistent  or  logical  decisions. 

Goods  were  shipped  by  bill  of  lading  in  seller's  name  and  bill 
of  lading  with  draft  attached  sold  to  a  bank.  Dictum  to  effect  that 
bank  could  sue  carrier  in  a  titular  action.  Act  not  referred  to.  Penin- 
sular Bk.  V.  Citizen's  Nat'l  Bk.,  186  la.  418,  172  N.  "W.  293. 

In  Boss  V.  Hutchinson,  169  N.  Y.  S.  513,  the  seller's  taking  the 
bill  of  lading  in  his  own  name  was  held  to  be  a  reservation  of 
"property  and  possession."  The  buyer  paid  the  contract  price  under 
protest.    On  suit  he  claimed  this  payment  to  have  been  under  duress. 


304  UNIFORM  SALES  ACT 

Held,  the  buyer  was  not  under  duress  in  making  the  payment,  as  is 
the  case  where  one  pays  to  get  possession  of  his  own  goods,  because 
they  were  not  the  buyer's  goods.  Accd.,  Rylance  v.  Jas.  Walker  Co., 
129  Md.  475,  99  Atl.  597. 

Risk  of  loss  on  buyer  despite  seller's  reservation  of  title  through 
taking  bill  of  lading  in  his  own  name.  Had  been  previously  decided, 
however,  that  title  had  in  fact  passed  to  buyer.  Smith  Co.  v.  Marano, 
267  Pa.  107,  110  Atl.  94,  10  A.  L.  R.  697. 

See  also  the  Uniform  Bills  of  Lading  Act,  Section  40. 

(4.)  Where  the  seller  of  goods  draws  on  the  buyer 
for  the  price  and  transmits  the  bill  of  exchange  and  bill 
of  lading  together  to  the  buyer  to  secure  acceptance  or 
payment  of  the  bill  of  exchange,  the  buyer  is  bound  to 
return  the  bill  of  lading  if  he  does  not  honor  the  bill  of 
exchange,  and  if  he  wrongfully  retains  the  bill  of  lading 
he  acquires  no  added  right  thereby.  If,  however,  the 
bill  of  lading  provides  that  the  goods  are  deliverable  to 
the  buyer  or  to  the  order  of  the  buyer,  or  is  indorsed  in 
blank,  or  to  the  buyer  by  the  consignee  named  therein, 
one  who  purchases  in  good  faith,  for  value,  the  bill  of 
lading,  or  goods  from  the  buyer  mil  obtain  the  property 
in  the  goods,  although  the  bill  of  exchange  has  not  been 
honored,  provided  that  such  purchaser  has  received  de- 
livery of  the  bill  of  lading  indorsed  by  the  consignee 
named  therein,  or  of  the  goods,  without  notice  of  the 
facts  making  the  transfer  wrongful. 

Section  21. — Sale  by  Auction. — In  the  case  of  sale  by 
auction — 

(1.)  Where  goods  are  put  up  for  sale  by  auction  in 
lots,  each  lot  is  the  subject  of  a  separate  contract  of  sale. 

(2.)  A  sale  by  auction  is  complete  when  the  auctioneer 
announces  its  completion  by  the  fall  of  the  hammer,  or 
in  other  customary  manner.  Until  such  announcement 
is  made,  any  bidder  may  retract  his  bid;  and  the  auc- 
tioneer may  withdraw  the  goods  from  sale  unless  the 
auction  has  been  announced  to  be  without  reserve. 

(3.)  A  right  to  bid  may  be  reserved  expressly  by  or 
on  behalf  of  the  seller. 


UNIFORM  SALES  ACT  305 

(4.)  Where  notice  has  not  been  given  that  a  sale  by- 
auction  is  subject  to  a  right  to  bid  on  behalf  of  the  seller, 
it  shall  not  be  lawful  for  the  seller  to  bid  himself  or  to 
employ  or  induce  any  person  to  bid  at  such  sale  on  his 
behalf,  or  for  the  auctioneer  to  employ  or  induce  any 
person  to  bid  at  such  sale  on  behalf  of  the  seller  or  know- 
ingly to  take  any  bid  from  the  seller  or  any  person  em- 
ployed by  him.  Any  sale  contravening  this  rule  may  be 
treated  as  fraudulent  by  the  buyer. 

Section  22. — Risk  of  Loss. — Unless  otherwise  agreed, 
the  goods  remain  at  the  seller's  risk  until  the  property 
therein  is  transferred  to  the  buyer,  but  when  the  prop- 
erty therein  is  transferred  to  the  buyer  the  goods  are 
at  the  buyer's  risk  whether  delivery  has  been  made  or 
not,  except  that — 

(a.)  Where  delivery  of  the  goods  has  been  made  to 
the  buyer,  or  to  a  bailee  for  the  buyer,  in  pursuance  of  the 
contract  and  the  property  in  the  goods  has  been  retained 
by  the  seller  merely  to  secure  performance  by  the  buyer 
of  his  obligations  under  the  contract,  the  goods  are  at 
the  buyer's  risk  from  the  time  of  such  delivery. 

(b.)  Where  delivery  has  been  delayed  through  the 
fault  of  either  buyer  or  seller  the  goods  are  at  the  risk 
of  the  party  in  fault  as  regards  any  loss  which  might  not 
have  occurred  but  for  such  fault. 

Transfer  of  Title 

Section  23. — Sale  by  a  Person  Not  the  Owner. — (1.) 
Subject  to  the  provisions  of  this  act,  where  goods  are 
sold  by  a  person  who  is  not  the  owaier  thereof,  and  who 
does  not  sell  them  under  the  authority  or  with  the  con- 
sent of  the  owner,  the  buyer  acquires  no  better  title  to 
the  goods  than  the  seller  had,  unless  the  owner  of  the 
goods  is  by  his  conduct  precluded  from  denying  the 
seller's  authority  to  sell. 

(2.)     Nothing  in  this  act,  however,  shall  affect — 
(a.)     The  provisions  of  any  factors'  acts,  recording 


306  UNIFORM  SALES  ACT 

acts,  or  any  enactment  enabling  the  apparent  owner  of 
goods  to  dispose  of  them  as  if  he  were  the  true  owner 
thereof. 

(b.)  The  validity  of  any  contract  to  sell  or  sale  under 
any  special  common  law  or  statutory  power  of  sale  or 
under  the  order  of  a  court  of  competent  jurisdiction. 

This  does  not  change  the  common  law  rule  in  respect  to  sale  of 
negotiable  instruments.  Pratt  v.  Higginson,  230  Mass.  256,  purchaser 
of  stolen  bonds  protected.  Brown  v.  Perera,  176  N.  Y.  S.  215,  purchaser 
of  stolen  foreign  money  protected. 

Entrusting  a  chauffeur  with  possession  of  automobile  for  pur- 
pose of  shipment  to  another  place  does  not  permit  the  chauffeur  to 
vest  title  in  a  bona  fide  purchaser.     Canales  v.  Earl,  168  N.  Y.  S.  725. 

One  who  has  a  voidable  title,  secured  by  fraud,  can  vest  a  purchaser 
without  notice  of  the  defect  with  a  good  title,  citing  Kingsford  v. 
Merry,  1  H.  &  N.  503 ;  B.  &  O.  S.  W.  Ry.  v.  Good,  82  O.  S.  278,  92  N.  E. 
435. 

One  who  buys  goods  from  a  thief  and  sells  them  himself  is  liable 
to  the  true  owner  for  conversion.  Reichard  v.  Hutton,  142  N.  Y.  S. 
935,  158  App.  Div.  122. 

Section  24. — Sale  by  One  Having  a  Voidable  Title. — 

Where  the  seller  of  goods  has  a  voidable  title  thereto, 
but  his  title  has  not  been  avoided  at  the  time  of  the  sale, 
the  buyer  acquires  a  good  title  to  the  goods,  provided  he 
buys  them  in  good  faith,  for  value,  and  without  notice 
of  the  seller's  defect  of  title. 

One  who  took  the  goods  in  good  faith,  but  in  payment  of  a  pre- 
existing debt,  was  held  not  to  be  within  this  rule  (the  Act  was  not 
expressly  mentioned).  W.  G.  Ward  Co.  v.  American  etc.  Co.,  247 
Pa.  267. 

Section  25. — Sale  by  Seller  in  Possession  of  Goods 
Already  Sold. — Where  a  person  having  sold  goods  con- 
tinues in  possession  of  the  goods,  or  of  negotiable  docu- 
ments of  title  to  the  goods,  the  delivery  or  transfer  by 
that  person,  or  by  an  agent  acting  for  him,  of  the  goods 
or  documents  of  title  under  any  sale,  pledge,  or  other 
disposition  thereof,  to  any  person  receiving  and  paying 
value  for  the  same  in  good  faith  and  without  notice  of  the 
previous  sale,  shall  have  the  same  effect  as  if  the  person 
making  the  delivery  or  transfer  were  expressly  author- 
ized by  the  owner  of  the  goods  to  make  the  same. 


UNIFORM  SALES  ACT  307 

In  Urbansky  v.  Kutinsky,  86  Conn.  22,  where  the  action  was  be- 
tween the  parties  themselves,  it  was  left  to  the  jury  to  say  whether 
title  had  not  passed  despite  the  seller's  retention  of  actual  possession. 
The  act  was  not  mentioned  in  this  connection. 

As  between  the  parties,  title  passes,  Patchin  v.  Rowell,  86  Ccuin. 
372,  85  Atl.  511;  Hallet  &  Davis  Piano  Co.  v.  Starr  Piano  Co.,  85 
O.  S.  196,  97  N.  E.  377. 

As  to  third  parties,  "It  is  the  general  holding  that  there  must 
be  not  only  a  delivery  to  the  vendee  claiming  the  goods,  but  there 
must  be  an  actual  and  visible  change  of  possession."  Act  not  cited. 
Hallet  &  Davis  Piano  Co.  v.  Starr  Piano  Co.,  85  O.  S.  196,  97  N.  E.  377. 

Section  26. — Creditors'  Rights  Against  Sold  Goods  in 
Seller's  Possession. — Where  a  person  having  sold  goods 
continues  in  possession  of  the  goods,  or  of  negotiable 
documents  of  title  to  the  goods  and  such  retention  of 
possession  is  fraudulent  in  fact  or  is  deemed  fraudulent 
under  any  rule  of  law,  a  creditor  or  creditors  of  the  seller 
may  treat  the  sale  as  void. 

Title  passes  as  between  the  parties  despite  seller's  retention  of 
possession,  but  "can  not  stand  against  a  subsequent  attaching  creditor 
without  notice."     Patchin  v.  Rowell,  86  Conn.  372,  85  Atl.  511. 

Section  27. — Definition  of  Negotiable  Documents  of 
Title. — A  document  of  title  in  which  it  is  stated  that  the 
goods  referred  to  therein  will  be  dehvered  to  the  bearer, 
or  to  the  order  of  any  person  named  in  such  document  is 
a  negotiable  document  of  title. 

A  certificate  of  stock  is  not  within  the  meaning  of  this  Act.  Millard 
V.  Green,  Conn.,  110  Atl.  177,  9  A.  L.  R.  1610. 

Section  28. — Negotiation  of  Negotiable  Documents  by 
Delivery. — A  negotiable  document  of  title  may  be  nego- 
tiated by  delivery, — 

(a.)  "Where  by  the  terms  of  the  document  the  car- 
rier, warehouseman  or  other  bailee  issuing  the  same  un- 
dertakes to  deliver  the  goods  to  the  bearer,  or 

(b.)  Where  by  the  terms  of  the  document  the  carrier, 
warehouseman  or  other  bailee  issuing  the  same  under- 
takes to  deliver  the  goods  to  the  order  of  a  specified  per- 


308  UNIFORM  SALES  ACT 

son,  and  such  person  or  a  subsequent  indorsee  of  the 
document  has  indorsed  it  in  blank  or  to  bearer. 

AVhere  by  the  terms  of  a  negotiable  document  of  title 
the  goods  are  deliverable  to  bearer  or  where  a  negotiable 
document  of  title  has  been  indorsed  in  blank  or  to  bearer, 
any  holder  may  indorse  the  same  to  himself  or  to  any 
other  specified  person,  and  in  such  case  the  document 
shall  thereafter  be  negotiated  only  by  the  indorsement  of 
such  indorsee. 

Section  29. — Negotiation  of  Negotiable  Documents  by 
Indorsement. — A  negotiable  document  of  title  may  be 
negotiated  by  the  indorsement  of  the  person  to  whose 
order  the  goods  are  by  the  terms  of  the  document  deliv- 
erable. Such  indorsement  may  be  in  blank,  to  bearer  or 
to  a  specified  person.  If  indorsed  to  a  specified  person, 
it  may  be  again  negotiated  by  the  indorsement  of  such 
person  in  blank,  to  bearer  or  to  another  specified  person. 
Subsequent  negotiation  may  be  made  in  like  manner. 

Section  30. — Negotiable  Documents  of  Title  Marked 
**Not  Negotiable." — If  a  document  of  title  which  con- 
tains an  undertaking  by  a  carrier,  warehouseman  or  other 
bailee  to  deliver  the  goods  to  the  bearer,  to  a  specified 
person  or  order,  or  to  the  order  of  a  specified  person,  or 
which  contains  words  of  like  import,  has  placed  upon  it 
the  words  ''not  negotiable,"  ''non-negotiable"  or  the 
like,  such  a  document  ma}'  nevertheless  be  negotiated  by 
the  holder  and  is  a  negotiable  document  of  title  within 
the  meaning  of  this  act.  But  nothing  in  this  act  con- 
tained shall  be  construed  as  limiting  or  defining  the  effect 
upon  the  obligations  of  the  carrier,  warehouseman,  or 
other  bailee  issuing  a  document  of  title  of  placing  thereon 
the  words  "not  negotiable,"  "non-negotiable,"  or  the 
like. 

Section  31. — Transfer  of  Non-Negotiable  Documents. — 
A  document  of  title  which  is  not  in  such  form  that  it  can 


UNIFORM  SALES  ACT  309 

be  negotiated  by  delivery  may  be  transferred  by  the 
holder  by  delivery  to  a  purchaser  or  donee.  A  non- 
negotiable  document  can  not  be  negotiated  and  the  in- 
dorsement of  such  a  document  gives  the  transferee  ho 
additional  right. 

Section  32. — Who  May  Negotiate  a  Document. — A  ne- 
gotiable document  of  title  may  be  negotiated — 

(a.)     By  the  owner  thereof,  or 

(b.)  By  any  person  to  whom  the  possession  or  custody 
of  the  document  has  been  entrusted  by  the  owner,  if,  by 
the  terms  of  the  document  the  bailee  issuing  the  docu- 
ment undertakes  to  deliver  the  goods  to  the  order  of  the 
person  to  whom  the  possession  or  custody  of  the  docu- 
ment has  been  entrusted,  or  if  at  the  time  of  such  en- 
trusting the  document  is  in  such  form  that  it  may  be 
negotiated  by  delivery. 

Section  33. — Rights  of  Person  to  Whom  Document  has 
Been  Negotiated. — A  person  to  whom  a  negotiable  docu- 
ment of  title  has  been  duly  negotiated  acquires  thereby, 

(a.)  Such  title  to  the  goods  as  the  person  negotiating 
the  document  to  him  had  or  had  ability  to  convey  to  a 
purchaser  in  good  faith  for  value  and  also  such  title  to 
the  goods  as  the  person  to  whose  order  the  goods  were  to 
be  delivered  by  the  terms  of  the  document  had  or  had 
ability  to  convey  to  a  purchaser  in  good  faith  for  value, 
and 

The  Uniform  Bills  of  Lading  Act  goes  further  and  provides  that  he 
shall  have  such  title  as  the  consignor  and  consignee  had  power  to 
convey. 

(b.)  The  direct  obligation  of  the  bailee  issuing  the 
document  to  hold  possession  of  the  goods  for  him  accord- 
ing to  the  terms  of  the  document  as  fully  as  if  such 
bailee  had  contracted  directly  with  him. 

Section  34. — Rights  of  Person  to  Whom  Document  Has 
Been  Transferred. — A  person  to  whom  a  document  of 


310  UNIFORM  SALES  ACT 

title  has  been  transferred,  but  not  negotiated,  acquires 
thereby,  as  against  tlie  transferor,  the  title  to  the  goods, 
subject  to  the  terms  of  any  agreement  with  the  trans- 
feror. 

If  the  document  is  non-negotiable,  such  person  also 
acquires  the  right  to  notify  the  bailee  who  issued  the 
document  of  the  transfer  thereof,  and  thereby  to  acquire 
the  direct  obHgation  of  such  bailee  to  hold  possession  of 
the  goods  for  him  according  to  the  terms  of  the  docu- 
ment. 

Prior  to  the  notification  of  such  bailee  by  the  trans- 
feror or  transferee  of  a  non-negotiable  document  of  title, 
the  title  of  the  transferee  to  the  goods  and  the  right  to 
acquire  the  obligation  of  such  bailee  may  be  defeated  by 
the  le\'y  of  an  attachment  or  execution  upon  the  goods 
by  a  creditor  of  the  transferor,  or  by  a  notification  to 
such  bailee  by  the  transferor  or  a  subsequent  purchaser 
from  the  transferor  of  a  subsequent  sale  of  the  goods  by 
the  transferor. 

Section  35. — Transfer  of  Negotiable  Document  With- 
out Indorsement. — Where  a  negotiable  document  of  title 
is  transferred  for  value  by  delivery,  and  the  indorse- 
ment of  the  transferor  is  essential  for  negotiation,  the 
transferee  acquires  a  right  against  the  transferor  to  com- 
pel him  to  indorse  the  document  unless  a  contrary  inten- 
tion appears.  The  negotiation  shall  take  effect  as  of  the 
time  when  the  indorsement  is  actually  made. 

Section  36. — Warranties  on  Sale  of  Document. — A  per- 
son who  for  value  negotiates  or  transfers  a  document  of 
title  by  indorsement  or  delivery,  including  one  who  as- 
signs for  value  a  claim  secured  by  a  document  of  title 
unless  a  contrary  intention  appears,  warrants : 

(a.)     That  the  document  is  genuine; 

(b.)  That  he  has  a  legal  right  to  negotiate  or  trans- 
fer it; 


UNIFORM  SALES  ACT  311 

(c.)  That  he  has  knowledge  of  no  fact  which  would 
impair  the  validity  or  worth  of  the  document,  and 

(d.)  That  he  has  a  right  to  transfer  the  title  to  the 
goods  and  that  the  goods  are  merchantable  or  fit  for 'a 
particular  purpose,  whenever  such  warranties  would  have 
been  implied  if  the  contract  of  the  parties  had  been  to 
transfer  without  a  document  of  title  the  goods  repre- 
sented thereby. 

Section  37. — Indorser  Not  a  Guarantor. — The  indorse- 
ment of  a  document  of  title  shall  not  make  the  indorser 
liable  for  any  failure  on  the  part  of  the  bailee  who  issued 
the  document  or  previous  indorsers  thereof  to  fulfill  their 
respective  obhgations. 

Section  38.  —  When  Negotiation  Not  Impaired  by 
Fraud,  Mistake  or  Duress. — The  validity  of  the  negotia- 
tion of  a  negotiable  document  of  title  is  not  impaired  by 
the  fact  that  the  negotiation  w^as  a  breach  of  duty  on  the 
part  of  the  person  making  the  negotiation,  or  by  the  fact 
that  the  o^vner  of  the  document  was  induced  by  fraud, 
mistake  or  duress  to  entrust  the  possession  or  custody 
thereof  to  such  person,  if  the  person  to  whom  the  docu- 
ment w^as  negotiated  or  a  person  to  whom  the  document 
was  subsequently  negotiated  paid  value  therefor,  with- 
out notice  of  the  breach  of  duty,  or  fraud,  mistake  or 
duress. 

Applied,  Roland  M.  Baker  Co.  v.  Brown,  214  Mass.  196,  100  N.  E. 
1025;  Commercial  Bank  v.  Canal  Bank,  239  U.  S.  520,  36  Sup.  Ct. 
Rep.  194. 

Section  39. — Attachment  or  Levy  Upon  Goods  for 
Which  a  Negotiable  Document  Has  Been  Issued. — If 

goods  are  delivered  to  a  bailee  by  the  ouTier  or  by  a  per- 
son whose  act  in  conveying  the  title  to  them  to  a  purchaser 
in  good  faith  for  value  would  bind  the  owner  and  a  nego- 
tiable document  of  title  is  issued  for  them  they  can  not 
thereafter,  while  in  the  possession  of  such  bailee,  be  at- 


312  UNIFORM  SALES  ACT 

tached  by  garnishment  or  otherwise  or  be  levied  upon 
under  an  execution  unless  the  document  be  first  sur- 
rendered to  the  bailee  or  its  negotiation  enjoined.  The 
bailee  shall  in  no  case  be  compelled  to  deliver  up  the 
actual  possession  of  the  goods  until  the  document  is 
surrendered  to  him  or  impounded  by  the  court. 

Section  40. — Creditors'  Remedies  to  Reach  Negotiable 
Documents. — A  creditor  whose  debtor  is  the  owner  of 
a  negotiable  document  of  title  shall  be  entitled  to  such 
aid  from  courts  of  appropriate  jurisdiction  by  injunc- 
tion and  otherwise  in  attaching  such  document  or  in 
satisfying  the  claim  by  means  thereof  as  is  allowed  at 
law  or  in  equity  in  regard  to  property  which  can  not 
readily  be  attached  or  levied  upon  by  ordinary  legal 
process. 


PART  III 

Performance  of  the  Contract 

Section  41. — Seller  Must  Deliver  and  Buyer  Accept 
Goods. — It  is  the  duty  of  the  seller  to  deliver  the  goods, 
and  of  the  buyer  to  accept  and  pay  for  them,  in  accord- 
ance with  the  terms  of  the  contract  to  sell  or  sale. 

Section  42. — Delivery  and  Payment  are  Concurrent 
Conditions. — Unless  otherwise  agreed,  delivery  of  the 
goods  and  payment  of  the  price  are  concurrent  condi- 
tions ;  that  is  to  say,  the  seller  must  be  ready  and  willing 
to  give  possession  of  the  goods  to  the  buyer  in  exchange 
for  the  price  and  the  buyer  must  be  ready  and  willing 
to  pay  the  price  in  exchange  for  possession  of  the  goods. 

A  codification  of  the  common  law,  Gnien  v.  Geo.  A.  Ohl  &  Co., 
81  N.  J.  L.  626,  80  Atl.  547;  British  Aluminum  Co.  v.  Trefts,  148 
N.  Y.  S.  144,  163  App.  Div.  184. 

Section  43. — Place,  Time  and  Manner  of  Delivery. — 
(1.)     \Vhether  it  is  for  the  buyer  to  take  possession  of 


UNIFORM  SALES  ACT  313 

the  goods  or  for  the  seller  to  send  them  to  the  buyer  is  a 
question  depending  in  each  case  on  the  contract,  express 
or  implied,  between  the  parties.  Apart  from  any  such 
contract,  express  or  impHed,  or  usage  of  trade  to  the 
contrary,  the  place  of  deUvery  is  the  seller's  place  of 
business  if  he  have  one,  and  if  not  his  residence;  but  in 
case  of  a  contract  to  sell  or  a  sale  of  specific  goods, 
which  to  the  knowledge  of  the  parties  when  the  contract 
or  the  sale  was  made  were  in  some  other  place,  then  that 
place  is  the  place  of  delivery. 

(2.)  Where  by  a  contract  to  sell  or  a  sale  the  seller 
is  bound  to  send  the  goods  to  the  buyer,  but  no  time  for 
sending  them  is  fixed,  the  seller  is  bound  to  send  them 
within  a  reasonable  time. 

(3.)  Where  the  goods  at  the  time  of  sale  are  in  the 
possession  of  a  third  person,  the  seller  has  not  fulfilled 
his  obHgation  to  deliver  to  the  buyer  unless  and  until 
such  third  person  acknowledges  to  the  buyer  that  he  holds 
the  goods  on  the  buyer's  behalf;  but  as  against  all  others 
than  the  seller  the  buyer  shall  be  regarded  as  having 
received  delivery  from  the  time  when  such  third  person 
first  has  notice  of  the  sale.  Nothing  in  this  section, 
however,  shall  affect  the  operation  of  the  issue  or  trans- 
fer of  any  document  of  title  to  goods. 

(4.)  Demand  or  tender  of  delivery  may  be  treated  as 
ineffectual  unless  made  at  a  reasonable  hour.  What  is 
a  reasonable  hour  is  a  question  of  fact. 

(5.)  Unless  otherwise  agreed,  the  expenses  of,  and 
incidental  to,  putting  the  goods  into  a  deliverable  state 
must  be  borne  by  the  seller. 

Section  44.  —  Delivery  of  Wrong  Quantity.  —  (1.) 
Where  the  seller  delivers  to  the  buyer  a  quantity  of  goods 
less  than  he  contracted  to  sell,  the  buyer  may  reject  them, 
but  if  the  buyer  accepts  or  retains  the  goods  so  delivered, 
knowing  that  the  seller  is  not  going  to  perform  the  con- 
tract in  full,  he  must  pay  for  them  at  the  contract  rate. 
If,  however,  the  buyer  has  used  or  disposed  of  the  goods 


314  UNIFORM  SALES  ACT 

delivered  before  he  knows  that  the  seller  is  not  going  to 
perform  his  contract  in  full,  the  buyer  shall  not  be  liable 
for  more  than  the  fair  value  to  him  of  the  goods  so  re- 
ceived. 

(2.)  Where  the  seller  delivers  to  the  buyer  a  quantity 
of  goods  larger  than  he  contracted  to  sell,  the  buyer  may 
accept  the  goods  included  in  the  contract  and  reject  the 
rest,  or  he  may  reject  the  whole.  If  the  buyer  accepts  the 
whole  of  the  goods  so  delivered  he  must  pay  for  them 
at  the  contract  rate. 

(3.)  Where  the  seller  dehvers  to  the  buyer  the  goods 
he  contracted  to  sell  mixed  with  goods  of  a  different  de- 
scription not  included  in  the  contract,  the  buyer  may  ac- 
cept the  goods  which  are  in  accordance  with  the  contract 
and  reject  the  rest,  or  he  may  reject  the  whole. 

(4.)  The  provisions  of  this  section  are  subject  to  any 
usage  of  trade,  special  agreement,  or  course  of  dealing 
between  the  parties. 

AppUed,  Rock  Glen  Salt  Co.  v.  Segal,  229  Mass.  115,  118  N.  E.  239; 
Boyd  V.  Second-hand  Supply  Co.,  14  Ariz.  36,  123  Pac.  619;  Powers 
V.  Dodgson,  194  Mich.  133,  160  N.  W.  432,  (sub-sec.  3). 

"Used  and  disposed  of",  in  sub-sec.  1,  "means  something  more  than 
merely  accepting.  It  contemplates  a  situation  in  which  the  buyer 
cannot  return  the  goods  to  the  seller."  Hence,  offering  goods  for 
resale,  but  without  succeeding  in  reselling  does  not  preclude  a  rejec- 
tion by  the  buyer.  Kinschman  v.  Crawford  Plummer  Co.,  150  N.  Y.  S. 
886,  165  App.  Div.  259. 

A  tender  of  81  pieces  to  a  buyer  who  has  ordered  only  50  pieces 
may  be  refused  by  the  buyer;  Act  not  referred  to.  Galland  v.  Kass, 
152  N.  Y.  S.  1074. 

Failure  to  tender  full  amount  may  be  acquiesced  in  by  buyer  and 
justified  by  course  of  dealing;  Act  not  cited.  Monroe  v.  Trenton 
Co.,  (N.  Y.)  206  Fed.  456, 

Section  45. — Delivery  in  Instalments. — (1.)  Unless 
otherwise  agreed,  the  buyer  of  goods  is  not  bound  to 
accept  delivery  thereof  by  instalments. 

(2.)  Where  there  is  a  contract  to  sell  goods  to  be  de- 
livered by  stated  instalments,  which  are  to  be  separately 
paid  for,  and  the  seller  makes  defective  deliveries  in 
respect  of  one  or  more  instalments,  or  the  buyer  neglects 


UNIFORM  SALES  ACT  315 

or  refuses  to  take  delivery  of  or  pay  for  one  or  more  in- 
stalments, it  depends  in  each  case  on  the  terms  of  the  con- 
tract and  the  circumstances  of  the  case,  whether  the 
breach  of  contract  is  so  material  as  to  justify  the  injured 
party  in  refusing  to  proceed  further  and  suing  for  dam- 
ages for  breach  of  the  entire  contract,  or  whether  the 
breach  is  severable,  giving  rise  to  a  claim  for  compen- 
sation, but  not  to  a  right  to  treat  the  whole  contract  as 
broken. 

Section  46. — Delivery  to  a  Carrier  on  Behalf  of  the 
Buyer. — (1.)  Where,  in  pursuance  of  a  contract  to  sell 
or  a  sale,  the  seller  is  authorized  or  required  to  send  the 
goods  to  the  buyer,  dehvery  of  the  goods  to  a  carrier, 
whether  named  by  the  buyer  or  not,  for  the  purpose  of 
transmission  to  the  buyer  is  deemed  to  be  a  delivery  of 
the  goods  to  the  buyer,  except  in  the  cases  provided  for 
in  section  19,  Rule  5,  or  unless  a  contrary  intent  appears. 

(2.)  Unless  otherwise  authorized  by  the  buyer,  the 
seller  must  make  such  contract  with  the  carrier  on  behalf 
of  the  buyer  as  may  be  reasonable,  having  regard  to  the 
nature  of  the  goods  and  the  other  circumstances  of  the 
case.  If  the  seller  omit  so  to  do,  and  the  goods  are  lost 
or  damaged  in  course  of  transit,  the  buyer  may  decline 
to  treat  the  delivery  to  the  carrier  as  a  delivery  to  him- 
self, or  may  hold  the  seller  responsible  in  damages. 

(3.)  Unless  otherwise  agreed,  where  goods  are  sent 
by  the  seller  to  the  buyer  under  circumstances  in  which 
the  seller  knows  or  ought  to  know  that  it  is  usual  to 
insure,  the  seller  must  give  such  notice  to  the  buyer  as 
may  enable  him  to  insure  them  during  their  transit,  and, 
if  the  seller  fails  to  do  so,  the  goods  shall  be  deemed  to  be 
at  his  risk  during  such  transit. 

Section  47. — Right  to  Examine  the  Goods. — (1.) 
Where  goods  are  delivered  to  the  buyer,  which  he  has 
not  previously  examined,  he  is  not  deemed  to  have  ac- 
cepted them  unless  and  until  he  has  had  a  reasonable 


316  UNIFORM  SALES  ACT 

opportunity  of  examining  them  for  the  purpose  of  ascer- 
taining whether  they  are  in  conformity  with  the  contract. 
(2.)  Unless  otherwise  agreed,  when  the  seller  tenders 
delivery  of  goods  to  the  buyer,  he  is  bound,  on  request, 
to  afford  the  buyer  a  reasonable  opportunity  of  examin- 
ing the  goods  for  the  purpose  of  ascertaining  whether 
they  are  in  conformity  with  the  contract. 

As  to  what  is  an  inspection,  Act  not  mentioned,  see  Mosler  Safe 
Co.  V.  Thore,  217  Mass.  153. 

Title  did  not  pass,  despite  delivery  to  carrier,  before  buyer's  in- 
spection, and  seller  could  sue  carrier  in  tort.  This  interpretation — 
not  being  limited  to  cases  where  goods  delivered  did  not  conform  to 
contract — conflicts  with  the  rule  that  title  presumably  passes  on 
delivery  to  a  carrier  of  goods  conforming  to  the  carrier.  There  is  no 
discussion  and  the  holding  seems  to  be  for  a  special  purpose.  Garvan 
V.  N.  Y.  C.  &  H.  R.  R.,  210  Mass.  275. 

In  D.  L.  &,  W.  Ry.  Co.  v.  United  States,  231  U.  S.  363  (N.  Y.  Dist), 
the  court  held  that  title  passed  to  the  buyer  on  mere  receipt  by  him 
of  the  goods,  subject  to  "rescission"  by  him  if  inspection  showed 
non-conformity  with  the  contract.  Here  again  the  conclusion  was 
obviously  reached,  regardless  of  precedent,  for  the  particular  purpose 
of  the  case. 

In  Urbansky  v.  Kutinsky,  86  Conn.  22,  the  common  law  rule  is 
clearly  followed  and  an  agreement  to  take  an  existing  and  definitely 
identified  chattel  was  held  to  preclude  any  right  of  inspection  as  a 
precedent  to  the  passing  of  title. 

Applied,  Bridgeport  Hardware  Co.  v.  Bouniol,  89  Conn.  254. 

Buyer's  receipt  of  goods  and  retention  of  them  without  inspection, 
or  reason  for  not  inspecting,  held  to  constitute  an  acceptance  of  title. 
Fort  Wayne  Printing  Co.  y.  Hurley-Reilly  Co.,  163  Wis.  179;  Gerli 
&  Co.  v.  Mistletoe  Silk  Mills,  80  N.  J.  L.  128. 

Seller  can  not  recover  price  without  proof  that  he  has  offered 
to  buyer  delivery  of  goods  which  conform  to  the  requirements  of  the 
contract.    Alamo  Cattle  Co.  v.  Hall,  220  Fed.   (Arizona)   832. 

An  acceptance  after  inspection  in  which  a  material  error  was  made, 
without  fault  of  the  buyer,  may  be  set  aside  and,  at  least,  the  seller's 
right  to  recovery  made  to  depend  on  a  new  inspection.  Herman  H. 
Hettler  Lumber  Co.  v.  Olds,  221  Fed.  (Mich.)  612. 

(3.)  Where  goods  are  delivered  to  a  carrier  by  the 
seller,  in  accordance  with  an  order  from  or  agreement 
with  the  buyer,  upon  the  terms  that  the  goods  shall  not 
be  delivered  by  the  carrier  to  the  buyer  until  he  has  paid 
the  price,  whether  such  terms  are  indicated  by  marking 
the  goods  with  the  words  *  *  collect  on  delivery, ' '  or  other- 


UNIFORM  SALES  ACT  317 

wise,  the  buyer  is  not  entitled  to  examine  the  goods  be- 
fore payment  of  the  price  in  the  absence  of  agreement 
permitting  such  examination. 

Section  48. — What  Constitutes  Acceptance. — The  buyer 
is  deemed  to  have  accepted  the  goods  when  he  intimates 
to  the  seller  that  he  has  accepted  them,  or  when  the 
goods  have  been  delivered  to  him,  and  he  does  any  act 
in  relation  to  them  which  is  inconsistent  with  the  OA\'Tier- 
ship  of  the  seller,  or  when,  after  the  lapse  of  a  reasonable 
time,  he  retains  the  goods  without  intimating  to  the 
seller  that  he  has  rejected  them. 

Use  of  part  of  goods,  under  entire  contract,  after  knowledge  that 
the  other  part  was  unsatisfactory  amounts  to  acceptance  of  the  whole; 
Emery  Thompson  etc.  Co.  v.  Graves,  91  Conn.  71,  98  Atl.  331. 

Applied  to  question  of  acceptance  for  purpose  of  satisfying  Statute 
of  Frauds,  DeNunzio  v.  DeNunzio,  90  Conn.  342,  97  Atl.  323. 

Retention  and  use  for  two  years  after  knowledge  of  defect  is 
acceptance,  but  recovery  of  damages  is  allowed.  Otis  Elevator  Co.  v. 
Headley,  81  N.  J.  L.  173,  80  Atl.  109. 

Right  to  "rescind"  lost  by  use  after  knowledge  of  defect,  Gerli 
&  Co.  v.  Mistletoe  Silk  Mills,  83  N.  J.  L.  7,  84  Atl.  1065;  Emert  v.  Nib- 
blink,  179  Mich.  335,  146  N.  W.  120. 

Whether  or  not  there  has  been  actual  acceptance  and  whether 
there  has  been  an  unreasonable  delay  are  questions  for  the  jury. 
Hayes  v.  Kluge,  86  N.  J.  L.  657,  92  Atl.  358. 

What  acts  amount  to  acceptance  is  a  question  for  the  court. 
Rudolph  Wurlitzer  Co.  v.  United  etc.  Co.,  87  N.  J.  L.  656,  94  Atl.  630, 
semble. 

"Reasonable  time"  is  a  question  of  law  when  the  facts  are  undis- 
puted. Am.  Steam  etc.  Co.  v.  Mechanics  etc.  Co.,  214  Mass.  299, 
101  N.  E.  376. 

Section  49. — Acceptance  Does  Not  Bar  Action  for  Dam- 
ages.— In  the  absence  of  express  or  implied  agreement 
of  the  parties,  acceptance  of  the  goods  by  the  buyer  shall 
not  discharge  the  seller  from  liability  in  damages  or 
other  legal  remedy  for  breach  of  any  promise  or  war- 
ranty in  the  contract  to  sell  or  the  sale.  But,  if,  after 
acceptance  of  the  goods,  the  buyer  fail  to  give  notice  to 
the  seller  of  the  breach  of  any  promise  or  warranty 
within  a  reasonable  time  after  the  buyer  knows,  or  ought 


318  UNIFORM  SALES  ACT 

to  know  of  such  breach,  the  seller  shall  not  be  liable 
therefor. 

If  the  buyer  does  waive  breach  of  condition  and  accept  title  to 
the  goods  tendered,  he  must  then  rely  on  recovery  of  damages  for 
breach  of  warranty  and  can  not  set  up  failure  of  consideration,  or 
non-acceptance.  Potter  Press  Co  v.  Newark  etc.  Co.,  82  N.  J.  L. 
671,  dictum. 

Acceptance  of  goods  despite  a  breach  of  condition  precludes  any 
recovery,  as  by  way  of  set  off  or  recoupment,  by  the  buyer.  Placed  on 
common  law  precedents;  Act  not  mentioned.  Cheboygan  Paper  Co.  v. 
Eichberg,  184  Mich.  30. 

An  implied  warranty  does  not  survive  acceptance;  Act  not  men- 
tioned and  no  authority  cited.  Ferguson  v.  Netter,  204  N.  Y.  505,  98 
N.  E.  16. 

Express  warranty  does  survive  acceptance;  Act  not  mentioned. 
Condit  V.  Onward  Const.  Co.,  210  N.  Y.  88,  103  N.  E.  886. 

Rescission  and  return  of  the  goods  are  inconsistent  with  acceptance 
and  recovery  of  damages.  Gerli  &  Co.  v.  Mistletoe  Silk  Mills,  80  N.  J. 
L.  128,  76  Atl.  335. 

Applied,  Gascoigne  v.  Cary  Brick  Co.,  217  Mass.  302,  104  N.  E.  734. 

Section  50. — Buyer  Is  Not  Bound  to  Return  Goods 
Wrongly  Delivered. — Unless  otherwise  agreed,  where 
goods  are  delivered  to  the  buyer,  and  he  refuses  to  ac- 
cept them,  having  the  right  so  to  do,  he  is  not  bound  to 
return  them  to  the  seller,  but  it  is  sufficient  if  he  notifies 
the  seller  that  he  refuses  to  accept  them. 

Section  51. — Buyer's  Liability  for  Failing  to  Accept 
Delivery. — ^AVhen  the  seller  is  read}^  and  willing  to  de- 
liver the  goods,  and  requests  the  buyer  to  take  delivery, 
and  the  buyer  does  not  within  a  reasonable  time  after 
such  request  take  delivery  of  the  goods,  he  is  liable  to  the 
seller  for  any  loss  occasioned  by  his  neglect  or  refusal 
to  take  delivery,  and  also  for  a  reasonable  charge  for  the 
care  and  custody  of  the  goods.  If  the  neglect  or  refusal 
of  the  buyer  to  take  delivery  amounts  to  a  repudiation 
or  breach  of  the  entire  contract,  the  seller  shall  have  the 
rights  against  the  goods  and  on  the  contract  hereinafter 
provided  in  favor  of  the  seller  when  the  buyer  is  in 
default. 


UNIFORM  SALES  ACT  319 

PART  IV 

Rights  of  Unpaid  Seller  Against  the  Goods 

Section  52.— Definition  of  Unpaid  Seller.— (1.)  The 
seller  of  goods  is  deemed  to  be  an  unpaid  seller  within 
the  meaning  of  this  act — 

(a.)  When  the  whole  of  the  price  has  not  been  paid 
or  tendered. 

(b.)  When  a  bill  of  exchange  or  other  negotiable  in- 
strument has  been  received  as  conditional  payment,  and 
the  condition  on  which  it  was  received  has  been  broken  by 
reason  of  the  dishonor  of  the  instrument,  the  insolvency 
of  the  buyer,  or  othermse. 

(2.)  In  this  part  of  this  act  the  term  "seller"  includes 
an  agent  of  the  seller  to  whom  the  bill  of  lading  has  been 
indorsed,  or  a  consignor  or  agent  who  has  himself  paid, 
or  is  directly  responsible  for,  the  price,  or  any  other  per- 
son who  is  in  the  position  of  a  seller. 

Section  53. — Remedies  of  an  Unpaid  Seller. — (1.) 
Subject  to  the  provisions  of  this  act,  notwithstanding 
that  the  property  in  the  goods  may  have  passed  to  the 
buyer,  the  unpaid  seller  of  goods,  as  such,  has — 

(a.)  A  lien  on  the  goods  or  right  to  retain  them  for 
the  price  while  he  is  in  possession  of  them ; 

(b.)  In  case  of  the  insolvency  of  the  buyer,  a  right  of 
stopping  the  goods  in  transitu  after  he  has  parted  with 
the  possession  of  them; 

(c.)     A  right  of  resale  as  limited  by  this  act ; 

(d.)     A  right  to  rescind  the  sale  as  limited  by  this  act. 

(2.)  Where  the  property  in  goods  has  not  passed  to 
the  buyer,  the  unpaid  seller  has,  in  addition  to  his  other 
remedies,  a  right  of  withholding  delivery  similar  to  and 
coextensive  with  his  rights  of  lien  and  stoppage  in 
transitu  where  the  property  has  passed  to  the  buyer. 


320  UNIFORM  SALES  ACT 

Unpaid  Sellee's  Lien 

Section  54. — When  Right  of  Lien  May  Be  Exercised. — 
(1.)  Subject  to  the  provisions  of  this  act,  the  unpaid 
seller  of  goods  who  is  in  possession  of  them  is  entitled  to 
retain  possession  of  them  until  payment  or  tender  of  the 
price  in  the  following  cases,  namely: 

(a.)  Where  the  goods  have  been  sold  without  any 
stipulation  as  to  credit; 

(b.)  Where  the  goods  have  been  sold  on  credit,  but 
the  term  of  credit  has  expired ; 

(c.)     Where  the  buyer  becomes  insolvent. 

(2.)  The  seller  may  exercise  his  right  of  lien  not- 
withstanding that  he  is  in  possession  of  the  goods  as 
agent  or  bailee  for  the  buyer. 

Section  55. — Lien  After  Part  Delivery. — Where  an  un- 
paid seller  has  made  part  delivery  of  the  goods,  he  may 
exercise  his  right  of  lien  on  the  remainder,  unless  such 
part  delivery  has  been  made  under  such  circumstances 
as  to  show  an  intent  to  waive  the  lien  or  right  of  reten- 
tion. 

Section  56. — When  Lien  Is  Lost. — (1.)  The  unpaid 
seller  of  goods  loses  his  lien  thereon — 

(a.)  When  he  delivers  the  goods  to  a  carrier  or  other 
bailee  for  the  purpose  of  transmission  to  the  buyer  with- 
out reserving  the  property  in  the  goods  or  the  right  to 
the  possession  thereof; 

(b.)  When  the  buyer  or  his  agent  lawfully  obtains 
possession  of  the  goods; 

(c.)     By  waiver  thereof. 

Lien  lost  by  carrier's  authorized  delivery  to  buyer  even  though 
freight  charges  were  not  paid.  Norfolk  Hardwood  Co.  v.  N.  Y.  C. 
R.  R.,  202  Mass.  160. 

Delivery  of  possession  of  negotiable  warehouse  receipts  is  delivery 
of  the  goods  so  as  to  terminate  lien.  Rummell  v.  Blanchard,  216 
N.  Y.  348,  Id.  153  N.  Y.  S.  159. 

When  lien  is  lost  by  delivery  of  possession  it  is  not  revived  by 
buyer's  subsequont  return  of  possession  and  refusal  to  pay.  Northern 
Grain  Co.  v.  Whiffler,  153  N.  Y.  S.  723. 


UNIFORM  SALES  ACT  321 

(2.)  The  unpaid  seller  of  goods,  having  a  lien  thereon, 
does  not  lose  his  lien  by  reason  only  that  he  has  obtained 
judgment  or  decree  for  the  price  of  the  goods. 

Capriano  v.  Italian  Importing  Co.,  151  N.  Y.  S.  994. 

Stoppage  in  Teansitu 

Section  57 — Seller  May  Stop  Goods  on  Buyer's  Insol- 
vency.— Subject  to  the  provisions  of  this  act,  when  the 
buyer  of  goods  is  or  becomes  insolvent,  the  unpaid  seller 
who  has  parted  with  the  possession  of  the  goods  has  the 
right  of  stopping  them  in  transitu,  that  is  to  say,  he  may 
resume  possession  of  the  goods  at  any  time  while  they 
are  in  transit,  and  he  will  then  become  entitled  to  the 
same  rights  in  regard  to  the  goods  as  he  would  have 
had  if  he  had  never  parted  with  the  possession. 

Eight  of  stoppage  in  transitu  does  not  exist  where  there  is  no 
transit;  it  can  not  be  involved  where  goods  have  been  put  in  possession 
of  a  warehouseman  merely  as  such.  Rummell  v.  Blanchard,  216 
N.  Y.  348. 

Term  "stoppage  in  transitu"  as  used  in  Act,  compared  with  broader, 
loose  usage,  Boyd  v.  Secondhand  Supply  Co.,  14  Ariz.  36. 

Section  58. — When  Goods  Are  in  Transit. — (1.)  Goods 
are  in  transit  within  the  meaning  of  section  57 — 

(a.)  From  the  time  when  they  are  delivered  to  a  car- 
rier by  land  or  water,  or  other  bailee  for  the  purpose  of 
transmission  to  the  buyer,  until  the  buyer,  or  his  agent 
in  that  behalf,  takes  delivery  of  them  from  such  carrier 
or  other  bailee; 

(b.)  If  the  goods  are  rejected  by  the  buyer,  and  the 
carrier  or  other  bailee  continues  in  possession  of  them, 
even  if  the  seller  has  refused  to  receive  them  back. 

(2.)  Goods  are  no  longer  in  transit  within  the  mean- 
ing of  section  57 — 

(a.)  If  the  buyer,  or  his  agent  in  that  behalf,  obtains 
delivery  of  the  goods  before  their  arrival  at  the  appointed 
destination ; 

(b.)  If,  after  the  arrival  of  the  goods  at  the  appointed 
destination,  the  carrier  or  other  bailee  acknowledges  to 


322  UNIFORM  SALES  ACT 

the  buyer  or  his  agent  that  he  holds  the  goods  on  his 
behalf  and  continues  in  possession  of  them  as  bailee  for 
the  buyer  or  his  agent ;  and  it  is  immaterial  that  a  fur- 
ther destination  for  the  goods  may  have  been  indicated 
by  the  buyer; 

(c.)  If  the  carrier  or  other  bailee  wrongfully  refuses 
to  dehver  the  goods  to  the  buyer  or  his  agent  in  that 
behalf. 

(3.)  If  goods  are  delivered  to  a  ship  chartered  by  the 
buyer,  it  is  a  question  depending  on  the  circumstances 
of  the  particular  case,  wether  they  are  in  the  possession 
of  the  master  as  a  carrier  or  as  agent  of  the  buyer. 

(4.)  If  part  delivery  of  the  goods  has  been  made  to 
the  buyer,  or  his  agent  in  that  behalf,  the  remainder  of 
the  goods  may  be  stopped  in  transitu,  unless  such  part 
delivery  has  been  made  under  such  circumstances  as  to 
show  an  agreement  with  the  buyer  to  give  up  possession 
of  the  whole  of  the  goods. 

Termination  of  the  transit  is  a  question  of  fact,  rather  than 
law,  and  termination  is  not  necessarily  shown  by  fact  that  goods 
had  reached  destination,  buyer  had  inspected  them  and  taken 
samples  and  carrier  had  notified  buyer  that  storage  charges  were 
running  against  the  goods.  Coleman  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  215 
Mass.  45.    Cf.  Norfolk  Hardwood  Co.  v.  N.  Y.  Cent.  R.  R.,  202  Mass.  160. 

Buyer  turned  his  bill  of  lading  in  to  the  railroad  company  and 
it  was  stamped  "cancelled  by  delivery,"  although  the  goods  never 
actually  left  the  carrier's  possession.  Held,  this  terminated  the 
seller's  right  of  stoppage  even  though  the  buyer  later  rejected  the 
goods,  got  his  bill  of  lading  back  from  the  carrier  and  had  the 
"cancelled"  stamp  scratched  off.  Northern  Grain  Co.  v.  Whiffler, 
153  N.  Y.  S.  723. 

Section  59.— Ways  of  Exercising  the  Right  to  Stop.— 
(1.)  The  unpaid  seller  may  exercise  his  right  of  stop- 
page in  transitu  either  by  obtaining  actual  possession  of 
the  goods  or  by  giving  notice  of  his  claim  to  the  carrier 
or  other  bailee  in  whose  possession  the  goods  are.  Such 
notice  may  be  given  either  to  the  person  in  actual  posses- 
sion of  the  goods  or  to  his  principal.  In  the  latter  case 
the  notice,  to  be  effectual,  must  be  given  at  such  time  and 


UNIFORM  SALES  ACT  323 

under  such  circumstances  that  the  principal,  by  the  exer- 
cise of  reasonable  diligence,  may  prevent  a  delivery  to 
the  buyer. 

(2.)  When  notice  of  stoppage  in  transitu  is  given  by 
the  seller  to  the  carrier,  or  other  bailee  in  possession  of 
the  goods,  he  must  redeliver  the  goods  to,  or  according  to 
the  directions  of,  the  seller.  The  expenses  of  such  deliv- 
ery must  be  borne  by  the  seller.  If,  however,  a  negotia- 
ble document  of  title  representing  the  goods  has  been 
issued  by  the  carrier  or  other  bailee,  he  shall  not  be 
obhged  to  deliver  or  justified  in  delivering  the  goods  to 
the  seller  unless  such  document  is  first  surrendered  for 
cancellation. 

Transfer  by  buyer  to  a  sub-buyer  of  a  non-negotiable  bill  of  lading 
does  not  defeat  the  seller's  right  of  stoppage  in  transitu;  the  words 
"non-negotiable"  stamped  on  the  bill  put  the  sub-buyer  on  notice.  Gass 
V.  Southern  Pacific  Co.,  137  N.  Y.  S.  261. 

Resale  by  the  Seller 

Section  60. — When  and  How  Resale  May  Be  Made. — 

(1.)  Where  the  goods  are  of  a  perishable  nature,  or 
where  the  seller  expressly  reserves  the  right  of  resale  in 
case  the  buyer  should  make  default,  or  where  the  buyer 
has  been  in  default  in  the  payment  of  the  price  an  unrea- 
sonable time,  an  unpaid  seller  having  a  right  of  hen  or 
having  stopped  the  goods  in  transitu  may  resell  the  goods. 
He  shall  not  thereafter  be  hable  to  the  original  buyer 
upon  the  contract  to  sell  or  the  sale  or  for  any  profit  made 
by  such  resale,  but  may  recover  from  the  buyer  damages 
for  any  loss  occasioned  by  the  breach  of  the  contract  or 
the  sale. 

(2.)  Where  a  resale  is  made,  as  authorized  in  this 
section,  the  buyer  acquires  a  good  title  as  against  the 
original  buyer. 

(3.)  It  is  not  essential  to  the  validity  of  a  resale  that 
notice  of  an  intention  to  resell  the  goods  be  given  by  the 
seller  to  the  original  buyer.  But  where  the  right  to  resell 
is  not  based  on  the  perishable  nature  of  the  goods  or  upon 


324  UNIFORM  SALES  ACT 

an  express  provision  of  the  contract  or  the  sale,  the  giving 
or  failure  to  give  such  notice  shall  be  relevant  in  any  issue 
involving  the  question  whether  the  buyer  had  been  in 
default  an  unreasonable  time  before  the  resale  was  made. 

(4.)  It  is  not  essential  to  the  validity  of  a  resale  that 
notice  of  the  time  and  place  of  such  resale  should  be 
given  by  the  seller  to  the  original  buyer. 

(5.)  The  seller  is  bound  to  exercise  reasonable  care 
and  judgment  in  making  a  resale,  and  subject  to  this 
requirement  may  make  a  resale  either  by  public  or  pri- 
vate sale. 

Rescission  by  the  Seller 

Section  61. — When  and  How  the  Seller  May  Rescind 
the  Sale. — (1.)  An  unpaid  seller  having  a  right  of  lien 
or  having  stopped  the  goods  in  transitu,  may  rescind 
the  transfer  of  title  and  resume  the  property  in  the  goods, 
where  he  expressly  reserved  the  right  to  do  so  in  case 
the  buyer  should  make  default,  or  where  the  buyer  has 
been  in  default  in  the  payment  of  the  price  an  unrea- 
sonable time.  The  seller  shall  not  thereafter  be  liable 
to  the  buyer  upon  the  contract  to  sell  or  the  sale,  but  may 
recover  from  the  buyer  damages  for  any  loss  occasioned 
by  the  breach  of  the  contract  or  the  sale. 

(2.)  The  transfer  of  title  shall  not  be  held  to  have 
been  rescinded  by  an  unpaid  seller  until  he  has  manifested 
by  notice  to  the  buyer  or  by  some  other  overt  act  an 
intention  to  rescind.  It  is  not  necessary  that  such  overt 
act  should  be  communicated  to  the  buyer,  but  the  giving 
or  failure  to  give  notice  to  the  buyer  of  the  intention  to 
rescind  shall  be  relevant  in  any  issue  involving  the  ques- 
tion whether  the  buyer  had  been  in  default  an  unreason- 
able time  before  the  right  of  rescission  was  asserted. 

Seller  still  in  possession  of  ring  held  liable  to  buyer  for  conversion 
and  breach  of  contract  for  refusal  to  deliver  on  buyer's  tender  of 
price,  even  though  the  buyer  had  failed  to  pay  for  many  months  after 
the  sale  and  had  even  written  a  letter  suggesting  that  the  transaction 
be  rescinded,  the  seller  never  having  shown  any  intent  to  rescind. 
Wright  V.  Andrews,  212  Mass.  186. 


UNIFORM  SALES  ACT  325 

Resale  without  public  auction  upheld,  Tyng  &  Co.  v.  Woodward, 
121  Md.  422;  Id,  123  Md.  98. 

Section  62. — Effect  of  Sale  of  Goods  Subject  to  Lien 
or  Stoppage  in  Transitu. — Subject  to  the  provisions  of 
this  act,  the  unpaid  seller's  right  of  lien  or  stoppage  in 
transitu  is  not  affected  by  any  sale,  or  other  disposition 
of  the  goods  which  the  buyer  may  have  made,  unless 
the  seller  has  assented  thereto. 

If,  however,  a  negotiable  document  of  title  has  been 
issued  for  goods,  no  seller's  lien  or  right  of  stoppage  in 
transitu  shall  defeat  the  right  of  any  purchaser  for  value 
in  good  faith  to  whom  such  document  has  been  nego- 
tiated, whether  such  negotiation  be  prior  or  subsequent 
to  the  notification  to  the  carrier,  or  other  bailee  who 
issued  such  document,  of  the  seller's  claim  to  a  lien  or 
right  of  stoppage  in  transitu. 

A  provision  of  the  EJnglish  Act,  similar  to  the  first  paragraph  is 
interpreted  as  to  the  meaning  of  "assent"  in  Mordaunt  Brothers  v. 
The  British  Oil  etc.  Co.,  (1910)  2  K.  B.  502. 

The  question  raised  in  the  text  as  to  the  effect  of  transfer  of  a 
bill  of  lading,  after  the  original  seller  had  actually  reacquired  posses- 
sion is  possibly  answered  by  Section  59  (2),  "If,  however,  a  negotiable 
document  of  title  representing  the  goods  has  been  issued  by  the  carrier 
or  other  bailee,  he  shall  not  be  obliged  to  deliver  or  justified  in  deliver- 
ing the  goods  to  the  seller  unless  such  document  is  first  surrendered 
for  cancellation."  Transfer  of  a  non-negotiable  bill  does  not  defeat 
right  to  stop.     Gass  v.  Southern  Pacific  Rr.  Co.,  137  N.  Y.  S.  261. 

PART  V 

Actions  for  Breach  of  the  Contract 

Remedies  of  the  Seller 

Section  63. — Action  for  the  Price. — (1.)  Where,  under 
a  contract  to  sell  or  a  sale,  the  property  in  the  goods  has 
passed  to  the  buyer,  and  the  buyer  wrongfully  neglects  or 
refuses  to  pay  for  the  goods  according  to  the  terms  of  the 
contract  or  the  sale,  the  seller  may  maintain  an  action 
against  him  for  the  price  of  the  goods. 


326  UNIFORM  SALES  ACT 

(2.)  Where,  under  a  contract  to  sell  or  a  sale,  the  price 
is  payable  on  a  day  certain,  irrespective  of  delivery  or  of 
transfer  of  title,  and  the  buyer  wrongfully  neglects  or 
refuses  to  pay  such  price,  the  seller  may  maintain  an 
action  for  the  price,  although  the  property  in  the  goods 
has  not  passed,  and  the  goods  have  not  been  appropriated 
to  the  contract.  But  it  shall  be  a  defense  to  such  an 
action  that  the  seller  at  any  time  before  judgment  in  such 
action  has  manifested  an  inability  to  perform  the  con- 
tract or  the  sale  on  his  part  or  an  intention  not  to  per- 
form it. 

(3.)  Although  the  property  in  the  goods  has  not 
passed,  if  they  cannot  readily  be  resold  for  a  reasonable 
price,  and  if  the  provisions  of  section  64  (4)  are  not  ap- 
plicable, the  seller  may  offer  to  dehver  the  goods  to  the 
buyer,  and,  if  the  buyer  refuses  to  receive  them,  may 
notify  the  buyer  that  the  goods  are  thereafter  held  by  the 
seller  as  bailee  for  the  buyer.  Thereafter  the  seller  may 
treat  the  goods  as  the  buyer's  and  may  maintain  an 
action  for  the  price. 

Buyer  refused  to  accept  goods  not  specified  at  time  of  contract. 
Seller  was  allowed  to  sue  for  entire  purchase  price,  on  the  authority 
of  Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  the  Act  not  being  mentioned. 
Storm  V.  Rosenthal,  141  N.  Y.  S.  339.  Right  to  sue,  regardless  of 
passage  of  title  by  agreement,  stated,  without  reference  to  the  Act, 
Rylance  v.  Jas.  Walker  Co.,  129  Md.  475,  99  Atl.  597. 

Section  64. — Action  for  Damages  for  Non-Acceptance 
of  the  Goods. — (1.)  Where  the  buyer  wrongfully  neglects 
or  refuses  to  accept  and  pay  for  the  goods,  the  seller  may 
maintain  an  action  against  him  for  damages  for  non- 
acceptance. 

(2.)  The  measure  of  damages  is  the  estimated  loss 
directly  and  naturally  resulting,  in  the  ordinary  course 
of  events,  from  the  buyer's  breach  of  contract. 

(3.)  AVhere  there  is  an  available  market  for  the  goods 
in  question,  the  measure  of  damages  is,  in  the  absence  of 
special  circumstances,  showing  proximate  damage  of  a 
greater  amount,  the  difference  between  the  contract  price 


UNIFORM  SALES  ACT  327 

and  the  market  or  current  price  at  the  time  or  times  when 
the  goods  ought  to  have  been  accepted,  or,  if  no  time  was 
fixed  for  acceptance,  then  at  the  time  of  the  refusal  to 
accept.  _ 

(4.)  If,  while  labor  or  expense  of  material  amount  are 
necessary  on  the  part  of  the  seller  to  enable  him  to  fulfill 
his  obligations  under  the  contract  to  sell  or  the  sale,  the 
buyer  repudiates  the  contract  or  the  sale,  or  notifies  the 
seller  to  proceed  no  further  therewith,  the  buyer  shall  be 
liable  to  the  seller  for  no  greater  damages  than  the  seller 
would  have  suffered  if  he  did  nothing  towards  carrying 
out  the  contract  or  the  sale  after  receiving  notice  of  the 
buyer's  repudiation  or  countermand.  The  profit  the 
seller  would  have  made  if  the  contract  or  the  sale  had 
been  fully  performed  shall  be  considered  in  estimating 
such  damages. 

Section  65. — When  Seller  May  Rescind  Contract  or 
Sale. — Where  the  goods  have  not  been  delivered  to  the 
buyer,  and  the  buyer  has  repudiated  the  contract  to  sell 
or  sale,  or  has  manifested  his  inability  to  perform  his 
obligations  thereunder,  or  has  committed  a  material 
breach  thereof,  the  seller  may  totally  rescind  the  con- 
tract or  the  sale  by  giving  notice  of  his  election  so  to  do 
to  the  buyer. 

Applies  to  anticipatory  breach  by  buyer,  Wetkopsky  v.  New  Haven 
Gas  Light  Co.,  90  Conn.  286,  96  Atl.  960. 

Remedies  of  the  Buyek 

Section  66. — Action  for  Converting  or  Detaining  Goods. 
— ^Where  the  property  in  the  goods  has  passed  to  the 
buyer  and  the  seller  wrongfully  neglects  or  refuses  to 
deliver  the  goods,  the  buyer  may  maintain  any  action 
allowed  by  law  to  the  o^vner  of  goods  of  similar  kind 
when  wrongfully  converted  or  withheld. 

Section  67. — Action  for  Failing  to  Deliver  Goods. — 
(1.)    Where  the  property  in  tlie  goods  has  not  passed  to 


328  UNIFORM  SALES  ACT 

the  buyer,  and  the  seller  wrongfully  neglects  or  refuses 
to  deliver  the  goods,  the  buyer  may  maintain  an  action 
against  the  seller  for  damages  for  non-delivery. 

(2.)  The  measure  of  damages  is  the  loss  directly  and 
naturally  resulting  in  the  ordinary  course  of  events,  from 
the  seller's  breach  of  contract. 

(3.)  Where  there  is  an  available  market  for  the  goods 
in  question,  the  measure  of  damages,  in  the  absence  of 
special  circumstances  showing  proximate  damages  of  a 
greater  amount,  is  the  difference  between  the  contract 
price  and  the  market  or  current  price  of  the  goods  at  the 
time  or  times  when  they  ought  to  have  been  delivered, 
or,  if  no  time  was  fixed,  then  at  the  time  of  the  refusal 
to  deliver.         ' 

Act  codifies  the  common  law  rule.  Banks  v.  Warner,  85  Conn. 
613,  84  Atl.  325. 

Although  the  act  fixes  the  measure  of  damages  it  does  not  con- 
stitute them  liquidated  damages  within  the  meaning  of  a  statute  per- 
mitting set-off  of  liquidated  damages.  Westminster  Metal  etc.  Co. 
V.   Coffman,   123   Md.   619,   91  Atl.   716. 

The  market  value  at  places  other  than  that  of  delivery  may  be 
shown  under  proper  circumstances.  U.  S.  Commercial  Co.  v.  Joachim- 
stahl,  —  N.  J.  — ,  72  Atl.  46. 

The  price  actually  paid  by  the  buyer  in  getting  other  goods  in 
place  of  those  contracted  for  does  not  necessarily  show  the  market 
price  nor  fix  the  damages.  Sauer  v.  McClintic  etc.  Co.,  179  Mich. 
618,  146  N.  W.  422. 

The  fact  that  the  buyer  has  made  a  contract  to  resell  at  a  profit, 
if  unknown  to  the  seller,  is  not  such  a  "special  circumstance"  as 
will  change  the  measure  of  damage  fixed  by  sub-section  3.  Pope  v. 
Ferguson,  82  N.  J.  L.  566,  83  Atl.  353. 

Special  cause  of  damage  must  have  been  within  the  seller's  con- 
templation to  be  ground  for  a  recovery.  Arizona  Power  Co.  v.  Racine 
Sattley  Co.,  13  Ariz.  283,  114  Pac.  558. 

"The  circumstances  of  each  case  must  determine  what  measure  of 
damages  should  apply,  having  in  view  always  the  giving  of  actual 
compensation  for  actual  loss,"  McFadden  v.  Shanley,  16  Ariz.  91, 
141  Pac.  732,  citing  common  law  authority;  Hanson  &  Parker  v. 
Wittenberg,  205  Mass.  319,  91  N.  E.  383. 

Section  68. — Specific  Performance. — Where  the  seller 
has  broken  a  contract  to  deliver  specific  or  ascertained 
goods,  a  court  having  the  powers  of  a  court  of  equity 


UNIFORM  SALES  ACT  329 

may,  if  it  thinks  fit,  on  the  application  of  the  buyer,  by 
its  judgment  or  decree  direct  that  the  contract  shall  be 
performed  specifically,  without  giving  the  seller  the  op- 
tion of  retaining  the  goods  on  payment  of  damages.  The 
judgment  or  decree  may  be  unconditional,  or  upon  such 
terms  and  conditions  as  to  damages,  payment  of  the  price 
and  otherwise,  as  to  the  court  may  seem  just. 

Section  69. — Remedies  for  Breach  of  Warranty. — (1.) 
Where  there  is  a  breach  of  w^arranty  by  the  seller,  the 
buyer  may,  at  his  election — 

(a.)  Accept  or  keep  the  goods  and  set  up  against  the 
seller,  the  breach  of  warranty  by  way  of  recoupment  in 
diminution  or  extinction  of  the  price ; 

(b.)  Accept  or  keep  the  goods  and  maintain  an  action 
against  the  seller  for  damages  for  the  breach  of  war- 
ranty ; 

(c.)  Refuse  to  accept  the  goods,  if  the  property  there- 
in has  not  passed,  and  maintain  an  action  against  the 
seller  for  damages  for  the  breach  of  warranty; 

(d.)  Rescind  the  contract  to  sell  or  the  sale  and  refuse 
to  receive  the  goods,  or  if  the  goods  have  ali^eady  been 
received,  return  them  or  offer  to  return  them  to  the  seller 
and  recover  the  price  or  any  part  thereof  which  has  been 
paid. 

Option  of  rescinding  contract  for  unspecific  goods  or  of  keeping 
the  goods  tendered  and  suing  for  damages  allowed,  on  common  law 
authorities.     Borden  v.  Fine,  212  Mass.  425. 

Plaintiff  agreed  to  sell  "draft  arms"  which  would  serve  to  draw 
both  still  and  live  beer  from  the  same  keg,  said  arms  to  be  made 
according  to  a  special  design  which  the  plaintiff  submitted  to  the 
buyer.  Some  arms  were  received  and  part  of  the  price  paid.  The  arms 
did  not  accomplish  the  purpose  contemplated  by  the  contract.  On 
suit  by  the  seller  for  the  rest  of  the  price  the  defendant  claimed  the 
right  of  avoiding  the  contract  and  recovering  the  money  already  paid, 
on  the  ground  that  the  seller  in  stating  that  the  arms  would  serve  the 
purpose  contemplated  had  been  guilty  of  fraud  in  law  (although  ad- 
mittedly not  of  fraud  in  fact).  The  defendant  does  not  seem  to  have 
based  his  contention  on  this  section,  69  (1)  (d),  which  seems  obviously 
apt,  and  the  court  made  no  mention  of  it  in  denying  the  right  to 
rescind,  saying  that  the  seller's  representation  was  a  mere  statement 


330  UNIFORM  SALES  ACT 

of  opinion  as  to  what  arms   such  as  they  had  designed  ought  to  do. 
Am.   Soda  Fountain  Co.  v.   Spring  Water  Co.,  207  Mass.  488. 

(2.)  When  the  buyer  has  claimed  and  been  granted  a 
remedy  in  any  one  of  these  ways,  no  other  remedy  can 
thereafter  be  granted. 

Breach  of  condition,  or  warranty,  in  one  contract  does  not  justify 
buyer  in  refusing  to  continue  with  an  other  contemporaneous  but 
distinct  contract.     Hanson  v.  Wittenberg,  205  Mass.  319. 

Section  69  (2.)  Buyer  who  has  rescinded  for  breach  can  not  also 
have  damages.    Gerli  &  Co.  v.  Mistletoe  Silk  Co.,  80  N.  J.  128. 

(3.)  "Where  the  goods  have  been  delivered  to  the  buyer, 
he  cannot  rescind  the  sale  if  he  knew  of  the  breach  of 
warranty  when  he  accepted  the  goods,  or  if  he  fails  to 
notify  the  seller  within  a  reasonable  time  of  the  election 
to  rescind,  or  if  he  fails  to  return  or  to  offer  to  return  the 
goods  to  the  seller  in  substantially  as  good  condition  as 
they  were  in  at  the  time  the  property  was  transferred  to 
the  buyer.  But  if  deterioration  or  injury  of  the  goods  is 
due  to  the  breach  of  warranty,  such  deterioration  or 
injury  shall  not  prevent  the  buyer  from  returning  or 
offering  to  return  the  goods  to  the  seller  and  rescinding 
the  sale. 

Accord  as  to  remedies  and  effect  of  unreasonable  delay,  but  Act 
not  mentioned  and  common  law  cases  cited.  Question  of  unreasonable 
delay  held  properly  decided  by  court.  Kelsey  v.  J.  W.  Ringrose  Co., 
152  Wis.  499. 

Right  of  rescission  not  lost  by  use  without  knowledge  of  the 
seller's  failure  to  perform,  act  not  mentioned.  Enterprise  Mfg.  Co. 
V.  Oppenheim,  114  Md.  368. 

Acceptance  of  one  installment  with  knowledge  that  it  was  deficient 
in  quantity  precludes  rescission  of  contract  and  rejection  of  other 
installments.     Craig  v.  Lane,  212  Mass.  195. 

Acceptance  with  knowledge  of  defects  precludes  rescission,  Puffer 
Mfg.  Co.  V.  Krum,  210  Mass.  211. 

Accord.  Schindler  v.  Sperling,  155  N.  Y.  S.  348. 
Resale  of  perishable  goods  by  the  buyer  as  agent  ex  necessitate  of 
the  seller  is  not  an  acceptance  of  the  goods  by  the  buyer.     Descalzi 
Fruit  Co.  V.  Sweet,  30  R.  I.  320. 

Applied,  SklUings  v.  Collins,  224  Mass.  275. 

Of.  Erwin  v.  Detwiler,  75  N.  J.  L.  420. 

(4.)  Where  the  buyer  is  entitled  to  rescind  the  sale 
and  elects  to  do  so,  the  buyer  shall  cease  to  be  liable  for 


UNIFORM  SALES  ACT  331 

the  price  upon  returning  or  offering  to  return  the  goods. 
If  the  price  or  any  part  thereof  has  already  been  paid, 
the  seller  shall  be  liable  to  repay  so  much  thereof  as  has 
been  paid,  concurrently  with  the  return  of  the  goods,  o*r 
immediately  after  an  offer  to  return  the  goods  in  ex- 
change for  repayment  of  the  price. 

(5.)  Where  the  buyer  is  entitled  to  rescind  the  sale 
and  elects  to  do  so,  if  the  seller  refuses  to  accept  an  offer 
of  the  buyer  to  return  the  goods,  the  buyer  shall  there- 
after be  deemed  to  hold  the  goods  as  bailee  for  the  seller, 
but  subject  to  a  lien  to  secure  the  repayment  of  any  por- 
tion of  the  price  which  has  been  paid,  and  with  the  reme- 
dies for  the  enforcement  of  such  lien  allowed  to  an  unpaid 
seller  by  section  53. 

(6.)  The  measure  of  damages  for  breach  of  warranty 
is  the  loss  directly  and  naturally  resulting,  in  the  ordinary 
course  of  events,  from  the  breach  of  warranty. 

(7.)  In  the  case  of  breach  of  warranty  of  quality,  such 
loss,  in  the  absence  of  special  circumstances  shomng 
proximate  damage  of  a  greater  amount,  is  the  difference 
between  the  value  of  the  goods  at  the  time  of  delivery  to 
the  buyer  and  the  value  they  would  have  had  if  they  had 
answered  to  the  warranty. 

Left  to  jury  to  say  whether  express  warranty  was  made  or  not, 
Gascoine  v.  Carey  Brick  Co.,  217  Mass.  304. 

An  express  warranty  may  be  merged  into  a  subsequent  contract 
in  such  a  way  as  to  be  eliminated.  Hamilton  Iron  etc.  Co.  v.  Grove- 
land  etc.  Co.,  233  Fed.  (Ohio)   388. 

Interpretation  of  an  express  warranty  that  a  horse  is  "sound," 
Andrews  v.  Peck,  83  Conn.  666. 

An  express  warranty  that  chattel  is  in  good  condition  can  not  be 
pleaded  in  same  count  with  a  promise  to  keep  in  repair.  White  Auto. 
Co.  V.  Dorsey,  119  Md.  251. 

Breach  of  the  warranty  must  be  proved  by  the  person  relying  on  it. 
Waterman  v.  School  Dist.,  182  Mich.  498. 

Opinion  distinguished,  Coleman  v.  Simpson  Co.,  147  N.  Y.  S.  865. 

Provision  that  "any  (nursery)  stock  which  does  not  prove  to  be 
true  to  name  as  labeled  is  to  be  replaced  free,  or  purchase  price  re- 
funded" held  not  to  limit  seller's  liability  to  replacement  or  cost 
price  only.    Sanford  v.  Brown  Bros.  Co.,  208  N.  Y.  90. 


332  UNIFORM  SALES  ACT 

Section  69  (6  and  7.)     Accord,  Hanson  v.  Wittenberg,  205  Mass  319. 

Damage  for  failure  to  deliver  fixed  by  market  price  of  goods 
available  at  the  place  and  time  for  delivery.  Fowler  v.  Gress  Mfg. 
Co.,  158  N.  Y.  S.  524. 

Accord  with  act.  White  Auto  Co.  v.  Dorsey,  119  Md.  251. 

Section  69  (6.)     Applied,  Foundry  Co.  v.  Stone,  92  O.  S.  76. 

Special  damages  allowed,  Glann  v.  White,  181  Mich.  320,  148 
N.  W..  210. 

Section  70. — Interest  and  Special  Damages. — Nothing 
in  this  act  shall  affect  the  right  of  the  buyer  or  the  seller 
to  recover  interest  or  special  damages  in  any  case  where 
by  law  interest  or  special  damages  may  be  recoverable, 
or  to  recover  money  paid  where  the  consideration  for  the 
payment  of  it  has  failed. 

PART  VI 

Intekpretation 

Section  71. — Variation  of  Implied  Obligations. — Where 
any  right,  duty  or  liability  would  arise  under  a  contract 
to  sell  or  a  sale  by  implication  of  law,  it  may  be  negatived 
or  varied  by  express  agreement  or  by  the  course  of  deal- 
ing between  the  parties,  or  by  custom,  if  the  custom  be 
such  as  to  bind  both  parties  to  the  contract  or  the  sale. 

Section  72. — Rights  May  Be  Enforced  By  Action. — 

Where  any  right,  duty  or  liability  is  declared  by  this  act, 
it  may,  unless  otherwise  by  this  act  provided,  be  enforced 
by  action. 

Section  73. — Rule  for  Cases  Not  Provided  for  by  this 
Act. — In  any  case  not  provided  for  in  this  act,  the  rules 
of  law  and  equity,  including  the  law  merchant,  and  in 
particular  the  rules  relating  to  the  law  of  principal  and 
agent  and  to  the  effect  of  fraud,  misrepresentation, 
duress  or  coercion,  mistake,  bankruptcy,  or  other  inval- 
idating cause,  shall  continue  to  apply  to  contracts  to  sell 
and  to  sales  of  ."roods. 


UNIFORM  SALES  ACT  333 

Section  74. — Interpretation  Shall  Give  Effect  to  Pur- 
pose of  Uniformity, — This  act  shall  be  so  interpreted  and 
construed,  as  to  effectuate  its  general  purpose  to  make 
uniform  the  laws  of  those  states  which  enact  it. 

The  meaning  and  effect  of  such  provisions  in  Uniform  Acts  is 
discussed  by  Jacob  Sicherman  in  2  Am.  Bar  Assn.  Jrnl.  60. 

The  marked  diversity  of  decision  under  the  Uniform  Negotiable 
Instruments  Act,  is  pointed  out  in  34  Repts.  of  Am.  Bar  Assn.  1030, 
39  Id.  1065. 

In  Pope  V.  Ferguson,  82  N.  J.  L.  566,  the  court  looked  to  the  deci- 
sions in  other  jurisdictions  with  the  express  purpose  of  securing 
uniformity. 

Section  75. — Provisions  Not  Applicable  to  Mortgages. 

— The  provisions  of  this  act  relating  to  contracts  to 
sell  and  to  sales  do  not  apply,  unless  so  stated,  to  any 
transaction  in  the  form  of  a  contract  to  sell  or  a  sale 
which  is  intended  to  operate  by  way  of  mortgage,  pledge, 
charge,  or  other  security. 

Section  76. — Definitions. — (1.)  In  this  act,  unless  the 
context  or  subject  matter  otherwise  requires — 

"Action"  includes  counterclaim,  set-off  and  suit  in 
equity. 

''Buyer"  means  a  person  who  buys  or  agrees  to  buy 
goods,  or  any  legal  successor  in  interest  of  such  person. 

"Defendant"  includes  a  plaintiff  against  whom  a 
right  of  set-off  or  counterclaim  is  asserted. 

"Delivery"  means  voluntary  transfer  of  possession 
from  one  person  to  another. 

"Divisible  contract  to  sell  or  sale"  means  a  contract 
to  sell  or  a  sale  in  which  by  its  terms  the  price  for  a 
portion  or  portions  of  the  goods  less  than  the  whole  is 
fixed  or  ascertainable  by  computation. 

"Document  of  title  to  goods"  includes  any  bill  of 
lading,  dock  warrant,  warehouse  receipt  or  order  for  the 
delivery  of  goods,  or  any  other  document  used  in  the 
ordinary  course  of  business  in  the  sale  or  transfer  of 
goods,  as  proof  of  the  possession  or  control  of  the  goods, 


334  UNIFORM  SALES  ACT 

or  authorizing  or  purporting  to  authorize  the  possessor 
of  the  document  to  transfer  or  receive,  either  by  indorse- 
ment or  by  delivery,  goods  represented  by  such  docu- 
ment. 

'* Fault"  means  wrongful  act  or  default. 

''Fungible  goods"  means  goods  of  which  any  unit  is 
from  its  nature  or  by  mercantile  usage  treated  as  the 
equivalent  of  any  other  unit. 

In  Gowd  V.  Healy,  206  N.  Y.  423,  the  contract  was  for  fifty  cases 
of  wine  out  of  a  larger  quantity,  apparently  of  cases  rather  than 
of  wine  in  bulk.    It  was  held  to  be  a  sale  of  fungible  goods. 

"Future  goods"  means  goods  to  be  manufactured  or 
acquired  by  the  seller  after  the  making  of  the  contract 
of  sale. 

* '  Goods ' '  include  all  chattels  personal  other  than  things 
in  action  and  money.  The  term  includes  emblements, 
industrial  growing  crops,  and  things  attached  to  or 
forming  part  of  the  land  which  are  agreed  to  be  severed 
before  sale  or  under  the  contract  of  sale. 

Corporate  stock  is  goods,  wares,  and  merchandises.  Laundry  Co.  v. 
Whitmore,  92  O.  S.  44. 

"Order"  in  sections  of  this  act  relating  to  documents 
of  title  means  an  order  by  indorsement  on  the  document. 

"Person"  includes  a  corporation  or  partnership,  or 
two  or  more  persons  having  a  joint  or  common  interest. 

"Plaintiff"  includes  defendant  asserting  a  right  of 
set-off  or  counterclaim. 

"Property"  means  the  general  property  in  goods,  and 
not  merely  a  special  property. 

"Purchaser"  includes  mortgagee  and  pledgee. 

"Purchases"  includes  taking  as  a  mortgagee  or  as  a 
pledgee. 

"Quality  of  goods"  includes  their  state  or  condition. 

"Sale"  includes  a  bargain  and  sale,  as  well  as  a  sale 
and  delivery. 

A  contract  obligating  an  agent  to  make  a  certain  number  of 
"sales"  was  held  to  refer  only  to  effectuated  transfers  of  title  and 


UNIFORM  SALES  ACT  335 

not  to  include  contracts  to  transfer  title.   The  act  was  not  mentioned. 
Hall  V.  French  Am.  Wine  Co.,  134  N.  Y.  S.  158. 

''Seller"  means  a  person  who  sells  or  agrees  to  sell 
goods,  or  any  legal  successor  in  the  interest  of  suclj 
person. 

''Specific  goods"  means  goods  identified  and  agreed 
upon  at  the  time  a  contract  to  sell  or  a  sale  is  made. 

"Value"  is  any  consideration  sufficient  to  support  a 
simple  contract.  An  antecedent  or  pre-existing  claim, 
whether  for  money  or  not,  constitutes  value  where  goods 
or  documents  of  title  are  taken  either  in  satisfaction 
thereof  or  as  security  therefor. 

(2.)  A  thing  is  done  "in  good  faith"  within  the  mean- 
ing of  this  act  when  it  is  in  fact  done  honestly,  whether 
it  be  done  neghgently  or  not. 

(3.)  A  person  is  insolvent  within  the  meaning  of  this 
act  who  either  has  ceased  to  pay  his  debts  in  the  ordinary 
course  of  business  or  cannot  pay  his  debts  as  they  become 
due,  whether  he  has  committed  an  act  of  bankruptcy  or 
not,  and  whether  he  is  insolvent  within  the  meaning  of 
the  federal  bankruptcy  law  or  not. 

(4.)  Goods  are  in  a  "deliverable  state"  within^  the 
meaning  of  this  act  when  they  are  in  such  a  state  that 
the  buyer  would,  under  the  contract,  be  bound  to  take 
delivery  of  them. 

Section  76a. — Act  Does  Not  Apply  to  Existing  Sales 
or  Contracts  to  Sell. — None  of  the  provisions  of  this  act 
shall  apply  to  any  sale,  or  to  any  contract  to  sell,  made 
prior  to  the  taking  effect  of  this  act. 

Section  76b. — No  Repeal  of  Uniform  Warehouse 
Receipt  Act  or  Uniform  Bills  of  Lading  Act. — Nothing 
ill  this  act  or  in  any  repealing  clause  thereof  shall  be 
construed  to  repeal  or  limit  any  of  the  provisions  of  the 
Act  to  Make  Uniform  the  Law  of  Warehouse  Receipts, 
or  of  the  Act  to  Make  Uniform  the  Law  of  Bills  of  Ladins:. 


336  UNIFORM  SALES  ACT 

Section  77. — Inconsistent  Legislation  Repealed. — All 
acts  or  parts  of  acts  inconsisteut  with  this  act  are  hereby- 
repealed,  except  as  provided  in  Section  76b. 

Section  78.— Time  When  the  Act  Takes  Effect.— This 

act  shall  take  effect  on  the day  of , 

one  thousand  nine  hundred  and 

Section  79. — Name  of  Act. — This  act  may  be  cited  as 
the  Uniform  Sales  Act. 


Table  of  Cases 


[references  are  to  the  pages.] 


Ackerman  v.  Rubens,  91. 

Acme  Food  Co.  v.  Older,  94,  95. 

Adams  County  etc.  v.  Walla  Walla  etc.  Co.,  268. 

A.  F.  T.  Corp.  V.  Pathe  Exchange,  202. 

Ainsworth  v.  Rhines,  177. 

A.  J.  Neimeyer  Co.  v.  Burlington  R.  R.,  51,  52. 

Alabama  National  Bank  v.  Parker,  30,  32. 

Alamo  Cattle  Co.  v.  Hall,  162,  316. 

Albany  Warehouse  Co.  v.  Fiske  Cotton  Co.,  202,  207. 

Albright  v.  Meredith,  106,  177. 

Alderman  v.  Eastern  R.  R.,  55. 

Alderman  Bros.  Co.  v.  Westinghouse  etc.  Co.,  60,  303. 

Aldrich  v.  Bank  of  Ohiowa,  245. 

Aldrich  v.  Hodges,  176. 

Aldridge  v.  Johnson,  47,  54,  67,  68. 

Altschul  V.  Kouen,  157. 

Alexander  v.  Mobile  Auto  Co.,  109. 

Allard  v.  Greasert,  249. 

Allen  V.  Burnett,  256,  262. 

Allen  V,  Greenwood,  27. 

Allen  V.  Lake,  173. 

Allen  V,  Rushfort,  19. 

Allen  V.  Williams,  57. 

Allyn  V.  Willis,  143,  146. 

America  Theatre  Co.  v.  Siegel,  Cooper  &  Co.,  174. 

American  Hide  Co.  v.  Chalkley,  47,  88,  92. 

American  Iron  &  Steel  Co.  v.  Midland  Steel  Co.,  259,  260. 

American  Soda  Fountain  Co.  v.  Spring  Water  Co.,  330. 

American  Soda  Fountain  Co.  v.  Vaughn,  100. 

American  Steam  etc.  Co.  v.  Mechanics  etc.  Co.,  317. 

Ames  V.  Moir,  97,  115,  124. 

Amsinck  v.  American  Insurance  Co.,  281. 

Anderson  v.  Anderson,  218. 


337 


338  TABLE  OF  CASES 

[references  are  to  the  paces.] 

Anderson  v.  Frank,  92. 

Anderson  v.  Morice,  61. 

Andrews  v.  Cheney,  44. 

Andrew  v.  Dieterich,  27,  21. 

Andrews  v.  Durrant,  43,  78. 

Andrews  v.  Peck,  331. 

Androvette  v.  Parks,  297. 

Angus  V.  MacLachlan,  120. 

Apperson  v.  Moore,  80,  85. 

Arctic  Stores,  in  re,  140. 

Argues  v.  Wasson,  85. 

Argus  Co.  V.  Mayor,  251. 

Arizona  Power  Co.  v.  Racine  Sattley  Co.,  328. 

Arky  v.  Commission  Co.,  260. 

Armsby  Co.  v.  Raymond  Bros.  Co.,  88. 

Armstrong  v.  Coyne,  55. 

Armstrong  v.  Orlen,  242,  288. 

Arnold  v.  Blabon,  157. 

Arnold  v.  Carpenter,  124. 

Arnold  v.  Delano,  112,  116. 

Atkinson  v.  Bell,  43,  94. 

Athletic  Co.  v.  Lumber  Co.,  174. 

Atlantic  Bldg.  Supply  Co.  v.  Vulcanite  etc.  Co.,  298,  300. 

Atwater  v.  Hough,  232,  242. 

Audenreid  v.  Randall,  222. 

Austrian  &  Co.  v.  Springer,  153,  156. 

Autofedan  Hay-Press  Co.  v.  Ward,  184. 

Automatic  Co.  v.  Automatic  Co.,  299. 


B 


Babcock  v.  Bonnell,  146. 
Backhaus  v.  Buells,  69,  152. 
Bailey  v.  Colby,  177. 
Bailey  v.  Hervey,  104,  109. 
Bailey  v.  H.  R.  R.  R.  Co.,  56. 
Bailey  v.  Long,  69. 
Baker  v.  Cuyler,  272. 
Baker  v.  Kamantowski,  296. 
Baker  v.  Lehman,  Weil  &  Co.,  72. 
Baker  v.  McDonald,  17,  22. 
Baker  v.  Taylor,  202. 
Baker  Co.  v.  Brown,  211. 
Baldey  v.  Parker,  249. 
Baldwin  v.  Daniel,  186. 
Baldwin  v.  Williams,  245. 
Ballard  v.  Burgett,  207. 


TABLE  OF  CASES  339 

[references  are  to  the  pages.] 


Ballantyne  v.  Appleton,  27. 

Baltimore  &  O.  Sw.  Ry.  Co.  v.  Good,  226,  306. 

Bank  of  Litchfield  v.  Elliott,  56. 

Bank  v.  Johnson,  205. 

Bank  v.  Railway  Co.,  223. 

Bank  v.  Securities  Co.,  261. 

Banks  v.  Warner,  328. 

Bannister  v.  Rouse,  101. 

Barber  v.  Myerstein,  219. 

Barrett  v.  Verdey,  90. 

Barrett  Mfg.  Co.  v.  Ambrosio,  289. 

Barrie  v.  Quimby,  94,  302. 

Barrington  v.  Hotel  Astor,  11,  190,  287. 

Barrow  v.  Brent,  202. 

Bartholomew  v,  Markwick,  148. 

Bartlett  v.  Hoppock,  172. 

Barton  v.  Kane,  162,  165. 

Barton  v.  Sitlington,  148. 

Barry  &  Co.  v.  Usry,  190. 

Basin  &  Co.  v.  Conley,  165,  193. 

Bass  V.  Abeles,  215. 

Bass  V.  Pease,  215,  218. 

Bates  V.  Coster,  237. 

Bates  V.  Smith,  72,  85. 

Bates  V.  Dwinell,  277. 

Bauman  v.  James,  257. 

Bauman  v.  Mendell  Lunepp  Co.,  289. 

Bayne  v.  Hard,  19. 

Bayonne  Knife  Co.  v.  Umbenhauer,  133,  143. 

Beckwith  v.  Talbot,  256. 

Beers  v.  Dawson,  213. 

Belding  v.  Frankland,  150. 

Belknap  v.  National  Bank,  210. 

Bell  V.  Ellis,  147. 

Bell  V.  Old,  105. 

Bement  v.  Smith,  98. 

Benedict  v.  Schaettle,  118. 

Bennett  v.  Hull,  241. 

Bent  V.  Cobb,  255. 

Benton  v.  Pratt,  280. 

Berger  v.  State,  56. 

Bernal  v.  Havious,  245.  ♦ 

Berndtson  v.  Strang,  137,  138,  224. 

Bernier  v.  Cabot  Mfg.  Co.,  283. 

Berry  v.  Wadhams  Oil  Co.,  296. 

Bertelson  v.  Bower,  17. 

Best  Mercantile  Co.  v.  Brewer,  88. 


340  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Bethell  &  Co.  v.  Clark,  137,  138,  139,  140. 

Bierce  v.  Hutchins,  100. 

Bigelow  V.  Legg,  87,  92. 

Bigelow  V.  Maine  Cent.  R.  R.,  196. 

Birmingham  Ry.  Co.  v.  Bowers,  177. 

Bishop  V.  Minderhout,  101. 

Bishop  V.  Webber,  196. 

Blackman  v.  Pierce,  140. 

Blackwood  v.  Cutting  Packing  Co.,  1,  24,  25,  26,  124. 

Black  River  Lumber  Co.  v.  Warner,  91. 

Blair  v.  A.  Johnson  &  Sons,  185. 

Blackiston  v.  Davies,  Turner  &  Co.,  30,  31. 

Blocker  v.  Burness,  213,  218. 

Blum  &  Co.  V.  Marks,  143. 

Blum  &  Co.  V.  Norris,  132,  133. 

Boardman  v.  Cutter,  242. 

Boardman  v.  Sill,  122. 

Boatsman  v.  Stockman's  Nat'l.  Bk.,  229. 

Boaz  &  Co.  V.  Schneider  &  Co.,  24. 

Bogigian  v.  Harsanoff,  242. 

Bohannon  v.  Pace,  281. 

Bohn  Mfg.  Co.  v.  Hynes,     117. 

Bolton  V.  Lancashire  Ry.  Co.,  115,  131. 

Bond  V.  Bourk,  98. 

Bondy  v.  Hardina,  298,  300. 

Bongard  v.  Block,  218. 

Booker  v.  Jones,  Admx.,  82. 

Booker  v.  Wolf,  279. 

Booth  V.  A.  Levy  &  Co.,  260,  262,  269. 

Booth  Steamship  Co.  v.  Cargo  Fleet  Co.,  144,  145. 

Boss  V.  Hutchinson,  303. 

Borden  v.  Fine,  297,  329. 

Borrekin  v.  Bevan,  186. 

Boston  Woven  Hose  Co.  v.  Kendall,  175,  184,  198. 

Bowers  v.  Ocean  S.  S.  Co.,  261. 

Bowers  v.  Whitney,  252. 

Bowes  V.  Shand,  170. 

Bowlby  V.  Bell,  243. 

Bowman  v.  Conn.,  250. 

Boyer  v.  Ashburn,  101. 

Boyd  v.  Bank  of  Mercer,  34. 

Boyd  v.  Second-Hand  Supply  Co.,  314,  321. 

Boyd  V.  Whitfield,  189. 

Brabin  v.  Hyde,  276,  277. 

Braddock  Glass  Co.  v.  Irwin  &  Co.,  31. 

Bradford  v.  Marbury,  109. 

Bradley  v.  Holdsworth,  242. 


TABLE  OF  CASES  341 

[references  are  to  the  paces.] 


Bradley  v.  Wheeler,  17,  25,  26. 

Brady  v.  Isler,  109. 

Bragg  V.  Morrill,  191. 

Branch  Saw  Co.  v.  Bryant,  51,  52. 

Brassel  v.  Troxel,  126. 

Bravan  v.  Atlanta,  139. 

Brenan  v.  Atlanta  R.  R.,  220. 

Bretz  V.  Diehl,  7,  65. 

Brewer  v.  Horst-Lachmund  Co.,  251,  258. 

Brewer  v.  Mich.  Salt  Assn.,  17. 

Brewer  Lumber  Co.  v.  Bost.  &  Al.  Ry.,  134. 

Brewster  v.  Taylor,  237. 

Brick  Co.  v.  Hood,  194. 

Bridgeford  v.  Crocker,  90. 

Bridgeport  Hardware  Co.  v.  Bouniol,  316. 

Briggs  V.  U.  S.,  18. 

Brigham  v.  Hibbard,  47. 

Bristol  V.  Mente,  252. 

British  Aluminum  Co.  v.  Trefts,  312. 

Broadwell  v.  Howard,  219. 

Brodhead  v.  Reinbold,  255. 

Brooke  Iron  Co.  v.  O'Brien,  139. 

Brooklyn  Cooperage  Co.  v.  Cora  etc.  Co.,  215. 

Brought  V.  Redewell  Music  Co.,  293,  296. 

Brown  v.  Adair,  30. 

Brownlee  v.  Bolton,  92. 

Brown  v.  Butchers  Bank,  252. 

Brown  v.  Edgington,  185. 

Brown  v.  Harris,  147. 

Brown  v.  Perera,  209,  306. 

Brown  v.  Sanborn,  250. 

Brown  v.  Snider,  249. 

Brown  v.  Rawlings,  282. 

Brown  v.  Zaccanti,  197. 

Brown  Bros.  v.  Gilliam,  4. 

Brownfield  v.  Johnson,  65,  68,  170. 

Brunsvold  v.  Medgorden,  11. 

Bryant  v.  Isburg,  184. 

Bryant  v.  Kelton,  213. 

Buckeye  Cotton  Oil  Co.  v.  Matheson,  56, 

Buckley  v.  Furniss,  132,  133,  140,  142. 

Budd  V.  Power  &  Co.  190. 

Bunday  v.  Columbus  Machine  Co.,  198. 

Burghall  v.  Howard,  131. 

Burke  v.  Dunn,  111. 

Burke  v.  Sharp,  213. 


342  TABLE  OF  CASES 

[references  are  to  the  paces.] 

Burke  &  Co.,  in  re,  139. 

Burnell  v.  Marvin,  102, 

Burnett  v.  Hursley,  193. 

Burnley  v.  Tufts,  98. 

Burns  v.  Campbell,  80. 

Burrill  v.  Stevens,  150. 

Burrows  v.  Whitaker,  21,  26. 

Burrus  v.  Hines,  283. 

Burtis  V.  Thompson,  111. 

Burton's  Appeal,  209. 

Burton  v.  Curyea,  211. 

Burton  v.  Gage,  276. 

Burton  &  Beard  v.  Nacodoches  Co.,  32. 

Butler  V.  Moore,  199. 

Butters  v.  Haughewat,  149,  226. 

Butterworth  v.  McKinley,  78. 

Button  V.  Trader,  105. 

Busch  V.  Stromberg-Carlson  Co.,  98. 

Bush  V.  Bender,  114. 

Bush  V.  Davis,  68. 

Butt  v.  Ellett,  80. 

Byles  V.  Colier,  26,  28. 

Bymside  v.  Burdett,  189,  190. 


Cablen  v.  Campbell,  140,  143. 

Cafre  v.  Lockwood,  193. 

Cahill  V.  Bigelow,  282. 

Calahan  v.  Babcock,  138,  143. 

Calais  Steamboat  Co.  v.  Scudder,  206. 

Caldwell  v.  Tutt,  115. 

Calvert  v.  Schultz,  266. 

Cameron  v.  Mount,  181. 

Campbell  v.  Thorp,  184,  199. 

Campbell  etc.  Co.  v.  Rockaway  Co.,  104,  109. 

Canadian  Co.  v.  Macgurn,  104. 

Can.  Nor.  R.  R.  v.  Miss.  R.  R.  Co.,  33. 

Canales  v.  Earl,  306. 

Canavan  v.  City  of  Mechanicsville,  191,  245. 

Carleton  v.  Lombard,  Ayres  &  Co.,  174,  187. 

Carpenter  v.  Chapman,  185. 

Carpenter  v.  Galloway,  250. 

Carpenter  v.  Glass,  153. 

Carriage  Co.  v.  Gilmore,  90,  92. 

Carroll  v.  Haskins,  297. 

Carruthers  v.  Paine,  78. 


TABLE  OF  CASES  343 

[references  are  to  the  pages.] 

Carter  v.  Glass,  185,  186. 

Carter  v.  Timber  Co.,  259,  261. 

Cartland  v.  Morrison,  19. 

Cary  v.  Williams,  218. 

Case  V.  Cramer,  278. 

Case  V.  Simonds,  92. 

Cassinelll  v.  Humphry  Supply  Co.,  21,  42,  68,  70,  298,  299. 

Castonola  v.  Mo.  Pac.  R.  R.,  222. 

Catani  v.  Swift  &  Co.,  199. 

Catlin  V.  Warren,  226. 

Chadron  Nat'l.  Bk.  v.  Tootle,  149. 

Chalmers,  ex  parte,  126. 

Chamberlain  v.  Jones,  235. 

Chamberlain  v.  Smith,  207. 

Chamberlain  Co.  v.  Tuttle,  217. 

Chandler  v.  Fuller,  118.  " 

Chandler  v.  Fulton,  140,  145,  146,  222,  224. 

Chandler  v.  Lopus,  186. 

Chandler  etc.  Co.  v.  Shea,  300. 

Chanter  v.  Hopkins,  158,  192. 

Chaplin  v.  Rogers,  264. 

Chapman  v.  Cole,  183. 

Chapman  v.  Ingram,  88. 

Chapman  v.  Kansas  City  R.  R.,  111. 

Chapman  v.  Shepherd,  68. 

Charles  v.  Carter,  159. 

Charleston  R.  R.  Co.  v.  Pope,  34. 

Chase  v.  Denny,  80. 

Chase  v.  Kelley,  105. 

Cheboygan  Paper  Co.  v.  E3ichberg,  174,  318. 

Chellis  V.  Grimes,  152. 

Chicago  Ry.  Co.  v.  Merchants  Bank,  102. 

Christensen  v.  Nelson,  177. 

Chumar  v.  Wood,  217. 

City  Drug  Co.  v.  Am.  Soda  Co.,  278. 

City  Nat'l.  Bank.  v.  Crahan,  120. 

Clapp  Bros.  v.  Sohmer,  134,  220. 

Clark  V.  Clement,  176. 

Clark  V.  Fey,  169. 

Clark  V.  Greeley,  19,  33. 

Clark  V.  Slaughter,  74. 

Clark  V.  Spence,  78. 

Clarkson  v.  Stevens,  78. 

Clay  V.  Yeates,  234. 

Clayton  v.  Andrews,  233,  236. 

Clayton  v.  Anthony,  217. 

Cleveland  v.  Sterrett,  157. 


344  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Cleveland  v.  Williams,  24,  42,  231. 

Cleveland  Rolling  Mill  v.  Rhodes,  170. 

Cloke  V.  Shafroth,  68. 

Clore  V.  Robinson,  92. 

Clough  V.  London  &  N.  W.  Ry.  Co.,  150. 

Cobb  V.  Haskell,  216. 

Coburn  v.  Pickering,  217. 

Cocke  V.  Chapman,  218. 

Coe  V.  Tough,  257. 

Cogar  V.  Burns  Lumber  Co.,  190. 

Cohen  v.  Piatt,  87. 

Coker  v.  State,  10. 

Colcord  v.  McDonald,  178. 

Cole  V.  Zucarello,  88. 

Coleman  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  136,  322. 

Coleman  v.  Simpson  Co.,  331. 

Collins  V.  Ralli,  202. 

Colorado  Springs  L.  S.  Co.  v.  Godding,  47. 

Colton  V.  Raymond,  276. 

Combs  V.  Bateman,  277. 

Commercial  Bank  v.  Armsby  Co.,  211. 

Commercial  Bank  v.  Canal  Bank,  211,  311. 

Commercial  Bank  v.  Hurt,  206,  212. 

Commercial  Bank  v.  Kortright,  20b. 

Commercial  Fire  Ins.  Co.  v.  Capital  City  Ins.  Co.,  75. 

Commercial  Nat'l.  Bank  v.  Gillette,  69. 

Commercial  Realty  Co.  v.  Dorsey,  296. 

Com.  V.  Abrahms,  10. 

Com.  V.  Hess,  17. 

Com.  V.  Miller,  11. 

Com.  V.  Packard,  10. 

Com.  V.  Phoenix  Co.,  11. 

Com.  V.  Tynnauer,  38. 

Com.  V.  Warren,  11. 

Comstock  V.  Price,  97. 

Condit  V.  Onward  Const.  Co.,  318. 

Conelly  Const.  Co.  v.  Royce,  271. 

Congar  v.  Chamberlain,  186. 

Congdon  v.  Kendall,  51. 

Conrad  v.  Fisher,  111.  113,  119,  124. 

Conrad  v.  Penna.  R.  R.  Co.,  42. 

Conrow  v.  Little,  149. 

Conroy  v.  Barrett,  302. 

Consumers  Ice  Co.  v.  Webster,  229. 

Conyers  v.  Ennis,  134,  140. 

Cook  v.  Darling,  187. 

Cook  V.  Lion  Fire  Ins.  Co.,  4. 


TABLE  OF  CASES  345 


[references  are  to  the  pages.] 


Cook  V.  Stevenson,  110. 

Cooke  V.  Blanchard,  80. 

Cooke  V.  Millard,  237,  249. 

Cool  V.  Peters,  248. 

Cooper,  ex  parte,  115. 

Coors  V.  Reagan,  207. 

Copas  V.  Provision  Co.,  196. 

Copehart  v.  Hale,  252. 

Coplay  Iron  Co.  v.  Pope,  165,  174. 

Cope's  Est.,  17. 

Corgan  v.  Frew,  214,  215. 

Costigan  v.  Hawkins,  189,  190. 

Coughlin  V.  Knowles,  283. 

Couture  v.  McKay,  143. 

Cowan  V.  Adams,  280. 

Cowdry  v.  Vandenburg,  206. 

Cowell  V.  Phoenix  Ins.  Co.,  281. 

Crabbe  v.  State,  38. 

Cragin  v.  O'Connell,  111. 

Craig  V.  Lane,  330. 

Crane  v.  Wilson,  170. 

Cream  City  Gas  Co.  v.  Friedlander,  165. 

Crescent  Mfg.  Co.  v.  Slattery,  154. 

Cresswell  v.  McCaig,  282. 

Crigger  v.  Coca-Cola  Bottle  Wks.,  199. 

Crompton  v.  Beach,  102,  104. 

Cromwell  v.  Wilkinson,  170. 

Croninger  v.  Crocker,  159. 

Crosby  v  Del.  &  Hud.  Canal  Co.,  4. 

Crosby  v.  Bouchard,  260. 

Crosby  v.  Wadsworth,  249. 

Cross  V.  O'Donnell,  269,  270. 

Crossman  v.  Johnson,  197. 

Crowl  V.  Goodenburger,  47. 

Crown  Vinegar  Co.  v.  Wehrs,  97. 

Crummey  v.  Raudenbush,  118,  119,  121. 

Crystal  Palace  etc.  Co.  v.  Butterfield,  258. 

Cundy  v.  Lindsay,  229. 

Cunliffe  v.  Harrison,  170. 

Cunningham  v.  Ashbrook,  21,  27. 

Curd  V.  Miller,  217. 

Curran  v.  Burdsall,  74. 

Currier  v.  Knapp,  177. 

Gushing  v.  Breed,  68. 

Cushman  v.  Jewell,  176,  177. 


346  TABLE  OF  CASES 

[references  are  to  the  paces.] 


D'Aquila  V.  Lambert,  131. 

Dalton  V.  Bentley,  157. 

Dancy  Hardware  Co.,  in  re. 

Daniel  v.  Hannah,  268. 

Daniel  v.  Morrison's  Exr.,  215. 

Daniels  v.  Newton,  111. 

DannenuUer  v.  Kirkpatrick,  31. 

Dargin  v.  Hewlett,  84. 

Darnell  v.  Lafferty,  259,  260,  261,  262. 

Darnell  v.  Young,  269. 

Daugherty  Bros.  v.  Central  National  Bank,  146. 

Dauphiny  &  Co.  v.  Red  Poll  Co.,  266. 

David  V.  Witmer,  154. 

Davis  V.  Blanchard,  289. 

Davis  V.  McFarlane,  245. 

Davis  V.  Millings,  104. 

Davis  V.  Moore,  271. 

Davis  V.  Turner,  217. 

Davis  V.  Van  Camp  Packing  Co.,  199. 

Davis  Sulphur  Ore  Co.  v.  Atlantic  Co.,  90,  92,  130. 

Day-v.  Bassett,  177. 

Day  V.  Mapes-Reeves  Cons.  Co.,  191. 

Day  V.  Poole,  175. 

Dearborn  v.  Cross,  282. 

Decan  v.  Shipper,  212. 

Dederick  v.  Wolfe,  101. 

Deep  River  Bank's  Appeal,  252. 

Deere  v.  Gorman,  94. 

De  Forest  Co.  v.  Standard  Oil  Co.,  190. 

D.  L.  &  W.  Ry.  Co.  v.  United  States,  316. 

Delforse  v.  Metropolitan  Nat'l.  Bank,  209. 

Delta  Bag  Co.  v.  Kearns,  220. 

Dempsey  v.  Gardner,  214. 

Denfield  Onion  Co.  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  55. 

Dennis  Simmons  Co.  v.  Corey,  252. 

De  Nunzio  v.  De  Nunzio,  289,  317. 

Devine  v.  Edwards,  31. 

Descolzi  Fruit  Co.  v.  Sweet,  330. 

De  Sewhanberg  v.  Buchanan,  186. 

Deutsch  V.  Dunham,  152,  158. 

Deutsch  V.  Pratt,  198. 

Deutzel  v.  Island  Park  Assn.,  51,  52. 

Devin  v.  Himer,  276. 

Devine  v.  Warner,  264. 

Dewett  V.  Warner,  264. 


TABLE  OF  CASES  347 


[references  are  to  the  pages.] 


Dick  V.  Clark  Jr.  Elec.  Co.,  184. 

Dickey  v.  Waldo,  85. 

Dickman  v.  Cook,  217. 

Dickman  v.  Williams,  131. 

Diekman  v.  Young,  276. 

Diem  v.  Koblitz,  117,  118,  119,  124,  126,  147. 

Dill  V.  Mumford,  88,  130. 

Dinsmore  v.  Maag-Wohmann  Co.,  298. 

Diversey  v.  Kellog,  163,  165. 

Dixon  V.  Yates,  18,  111,  115,  117. 

D.  M.  Ferry  &  Co.  v.  Hall,  5. 

Doan  V.  Dunham,  165. 

Doan  V.  Lockwood,  150. 

Dobell  V.  Stevens,  185. 

Dr.  A.  P.  Sawyer  Medicine  Co.  v.  Johnson,  51. 

Dodge  V.  Nat'l.  Exch.  Bk.,  228. 

Donaldson  v.  Byrd  &  Co.,  226. 

Donath  v.  Broomhead,  138. 

Dooley  v.  Pease,  218. 

Douglas  V.  People's  Bank,  55. 

Dounce  v.  Dow,  193. 

Dow  V.  Schloss,  236. 

Dowagiac  Mfg.  Co.  v.  Mahon,  105. 

Dowling  V.  McKenney,  241. 

Downer  v.  Thompson,  53,  170. 

Downing  v.  Stone,  230. 

Downs  &  Skillinger  v.  Ross,  232,  235,  237. 

Dows  V.  Nat'l.  Exch.  Bk.,  55,  59. 

Doyle  V.  Fuerst,  190, 

Dreisbach  v.  Eckelkamp,  294. 

Driggs  V.  Bush,  275,  276,  277. 

Drury  v.  Armour  &  Co.,  199. 

Drury  v.  Young,  251,  252,  254. 

Dube  V.  Liberty  Clothing  Co.,  162,  301. 

Duke  V.  Schackleford,  103. 

Duncuff  V.  Albrecht,  243. 

Dunkart  v.  Rineheart,  70. 

Dunlap  V.  Grote,  101. 

Dunn  V.  State,  41,  57. 

Dunning  v.  Roberts,  251. 

Durkee  v.  Powell,  267. 

Dustan  v.  McAndrew,  96,  128. 

Dutton  V.  Solomonson,  51,  109. 

Dymock  v.  Midland  Nat'l.  Bk.,  222. 


348  TABLE  OF  CASES 

[references  are  to  the  paces.] 

E 

Eaton  V.  B.  C.  &  M.  R.  R.  Co.,  3. 

Eaton  V.  Cook,  142,  220. 

Eaton  V.  State,  33. 

Edelstone  v.  Schimmel,  56. 

Edgar  v.  Breck  &  Sons,     268. 

Edmunds  v.  Merchants  Dispatch  Co.,  228. 

Edwards  v.  Brewer,  134. 

Edwards  v.  Dooley,  202. 

Edwards  v.  Elliott,  75,  78. 

Edwards  v.  Harben,  213. 

Eichberg  Co.  v.  Paper  Co.,  266. 

Eigen  v.  Rosolin,  288. 

Eilers  Music  House  v.  Douglass,  105. 

Elder  v.  Insurance  Co.,  299. 

Electric  Ltg.  Co.  v.  Rust,  80. 

Ellershaw  v.  Magniac,  56. 

Elliott  V.  Leslie,  75. 

Ellis  &  Meyers  Lumber  Co.  v.  Hubbard,  28,  41. 

Elson  V.  Moore,  106. 

Elwood  State  Bank  v.  Mock,  105. 

E.  M.  Brash  Cigar  Co.  v.  Wilson,  38. 

Emerson  v.  Shores,  246,  248. 

Emert  v.  Nibblink,  317. 

Emery  v.  Boston  Term.  Co.,  250. 

EJmery's  Sons  v.  Irving  Bank,  55. 

Emery  Thompson  Co.  v.  Graves,  168,  300,  317. 

English  V.  Hanford,  185. 

Engemann  v.  D.  L.  &  W.  R.  R.  Co.,  301,  302. 

Enterprise  Mfg.  Co.  v.  Oppenheim,  330. 

Erickson  v.  Lyon,  19. 

Erwin  v.  Detwiler,  331. 

Evans  v.  Warren,  120. 

Evans  v.  Winona  Lumber  Co.,  239,  283. 

Evans  etc.  Co.  v.  Missouri  K.  &  T.  R.  R.,  133. 

EvartB  v.  Thorn,  236. 

Everett  v.  Coffin,  122. 

Everett  v.  Hale,  102. 

F 

Fairbank  Co.  v.  Metzger,  175. 
Fairbanks  v.  Malloy,  103. 
Fairbanks  Co.  v.  Holt,  196. 
Fairbanks  Morse  Co.  v.  Baskett,  193. 


TABLE  OF  CASES  349 


[references  are  to  the  pages.] 


Palke,  ex  parte,  137,  142. 

Falcke  v.  Gray,  153. 

Farmers  Nat'l.  Bank  v.  Coyner,  75,  85. 

Farmers  Phosphate  Co.  v.  Gill,  27. 

Farrell  v.  Richmond  etc.  R.  R.,  143. 

Farrell  v.  The  Manhattan  Market  Co.,  196. 

Farren  v.  Dameron,  173. 

Farrow  v.  Andrews,  172. 

Fauntleroy  v.  Wilcox,  193. 

Fechteler  v.  Whittemore,  293. 

Feeney  &  B.  Co.  v.  Stone,  184. 

Felse  V.  Wray,  134. 

Fellows  V.  Boston  &  Me.  R.  R.,  18. 

Fenkhausen  v.  Fellows,  133. 

Ferguson  v.  Netter,  318. 

Ferguson  v.  Northern  Bk.  of  Ky.,  69. 

Ferris  v.  Comstock,  199. 

Field  V.  Simeo,  218. 

Filley  v.  Pope,  170. 

Finlay  v.  Ludden  &  Bates  Co.,  177. 

Finley  v.  State,  10. 

First  Nat'l.  Bk.  v.  American  Exchange  Bk.,  229. 

First  Nat'l.  Bk.  v.  Blair  State  Bk.,  281. 

First  Nat'l.  Bank  v.  Cazort  &  McGehee  Co.,  42. 

First  Nat'l.  Bank  v.  Crowley,  75. 

First  Presbyterian  Church  v.  Swanson,  252. 

Fish  V.  Capwell,  248. 

Fishback  v.  Van  Dusen  &  Co.,  34. 

Fisher  v.  Samuda,  165. 

Fitzsimmons  v.  Woodruff,  237. 

Flanney  v.  Harley,  34. 

Flash  V.  RosBiter,  261. 

Fleck  V.  Warner,  103. 

Fleet  V.  Hertz,  5,  7. 

Fleming  v.  Sherwood,  101. 

Fleming  v.  Townsend,  213,  218. 

Flick  V.  Weatherbee,  199. 

Flint  V.  Corbitt,  237. 

Fluharty  v.  Mills,  248. 

Fogel  V.  Brubaker,  53. 

Fonville  v.  Casey,  82,  85. 

Foote  V.  Wilson,  173. 

Forbes  Co.  v.  Wilson,  104,  109. 

Ford  V.  Farmer's  Eixch.,  199. 

Ford  V.  Howgate,  271,  274. 

Ford  V.  Tiley,  111. 

Fordice  v.  Gibson,  69,  75. 


350  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Fort  Wayne  Printing  Co.  v.  Hurley-Reilly  Co.,  316. 

Forsythe  Mfg.  Co.  v.  Castlen,  72. 

Foundry  Co.  v.  Pascagoula,  102,  177,  178. 

Foundry  Co.  v.  Stone,  332. 

Fowler  v.  Gress  Mfg.  Co.,  332. 

Fowler  v.  Parsons,  122. 

Fox  V  Proctor,  299. 

Fox  V.  Willis,  143. 

Fox  V.  Woods,  90. 

Foye  V.  Patch,  252. 

Frame  v.  Oregon  Liquor  Co.,  140,  143. 

Francher  v.  Goodman,  125. 

Francis  v.  Bohart,  104. 

Frank  v.  Murray,  242. 

Franklin  v.  Matoa  Gold  Co.,  241,  244. 

Franklin  Sugar  Co.  v.  Collier,  147. 

Freeh  v.  Lewis,  34,  147. 

Freed  Furniture  Co.  v.  Sorenson,  207. 

Freedman  v.  Phillips,  176. 

Freeman  v.  Baker,  185. 

Freeman  v.  Lopkis,  147,  150. 

Freemont  Carriage  Co.  v.  Thomsen,  242. 

French  v.  Boston  Nat'l.  Bk.,  271. 

French  v.  Schoonmaker,  245. 

Friedman  v.  Pious,  290. 

Friedman  v.  Shoe  Mfg.  Co.,  165. 

Friend  v.  Childs  Co.,  11,  287. 

Frisch  v.  Ells,  104. 

Frisch  V.  Wells,  98,  105. 

Frith  &  Co.  v.  Hollan,  184. 

Frost  V.  Woodruff,  24,  29,  214. 

Fuller  V.  Bryne,  104,  105. 

Fulton  Bank  v.  Mathers,  184. 

Funke  v.  Allen,  94. 

G 

Gabarron  v.  Kreeft,  56,  76. 

Gabriel  v.  Kildare  Elevator  Co.,  270. 

Gadsden  v.  Lance,  245. 

Gaines  v.  McAdam,  258. 

Galland  v.  Kass,  314. 

Gallup  V.  Fox,  149. 

Gammage  v.  Texas,  94. 

Garbutt  v.  Watson,  234. 

Card  V.  Ramos,  269. 

Gardiner  v.  McDonough,  215. 


TABLE  OF  CASES  351 

f  REFERENCES  ARE  TO  THE  PAGES.] 


Gardiner  v.  Suydam,  42,  65,  68, 

Gardiner  Bank  v.  Hodgdon,  217. 

Gardner  v.  Deeds,  90. 

Gardner  v.  Joy,  239. 

Gardner  v.  Lane,  162,  183. 

Garfield  v.  Paris,  268,  270. 

Garton  Toy  Co.  v.  Buswell  Lumber  Co.,  253. 

Garvan  v.  N.  Y.  C.  R.  R.,  3,  30,  302,  316. 

Gascoigne  v.  Gary  Brick  Co.,  297,  318,  331. 

Gass  V.  Astoria  Veneer  Mills,  221. 

Gars  V.  So.  Pac.  Co.,  323,  325. 

Gatiss  V.  Cyr.,  50. 

Gaylor  v.  Copes,  189. 

G.  B.  Shearer  Co.  v.  Kakoulis,  198. 

Gearing  v.  Berkson,  199,  200,  296. 

Gehl  V.  Milwaukee  Produce  Co.,  88,  92. 

Geo.  A.  Ohl  &  Co.  V.  Barnet  Co.,  299. 

Georgia  Marble  Works  v.  Minor,  18,  56. 

Gerli  v.  Metzger  &  Co.,  236,  240. 

Gerli  &  Co.  v.  Mistletoe  Silk  Mills,  316,  317,  318,  330. 

Gerow  v.  Costello,  102. 

Gibbons  v.  Dillingham,  245. 

Gibson  v.  Carruthers,  126,  131. 

Gibson  v.  Inman  Packet  Co.,  29. 

Gibson  v.  Love,  217,  218. 

Gibson  v.  Pelkie,  71. 

Gibson  v.  Roy,  153. 

Gilbert  v.  Ayoub,  55,  303. 

Gile  V.  Lasalle,  42,  75. 

Gillan  v.  State,  9. 

Gillette  v.  Hill,  67,  68. 

Gilman  v.  Hill,  249. 

Gilman  Oil  Co.  v.  Norton,  202. 

Ginley  v.  Betchel,  202. 

Ginsburg  v.  Lumber  Co.,  5. 

Girard  v.  Taggart,  94,  109. 

Giroux  V.  Steadman,  196. 

Gittings  V.  Nelson,  80. 

Glann  v.  White,  332. 

Glasgow  Milling  Co.  v.  Burgher,  260. 

Glisson  V.  Heggie  Bros.,  101,  106. 

Goddard  v.  Binney,  241. 

Godkin  v.  Weber,  265,  268. 

Godts  V.  Rose,  63. 

Godwin  v.  Plufer,  147. 

Golding,  ex  parte,  141. 

Goldowitz  V.  Kupfer  Lumber  Co.,  253,  289. 


352  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Gold  Ridge  Mining  Co.  v.  Tallmadge,  165,  184,  190. 

Golightly  V.  State,  37,  59. 

Goodrich  v.  Hubbard,  153. 

Gordon  v.  Tweedie,  282. 

Gordon  v.  Waterous,  164. 

Gorman  v.  Brossard,  241,  277. 

Gottlieb  V.  Rinaldo,  7. 

Gowd  V.  Healy,  334. 

Graff  V.  Fitch,  20,  28. 

Grand  Union  Co.,  in  re,  287. 

Grand  Tower  Co.  v.  Phillips,  153. 

Grant  v.  Steiner,  80,  85. 

Grantham  v.  Hawley,  83. 

Gray  v.  Booth,  100. 

Greaves  v.  Ashlin,  125. 

Greenleaf  v.  Gallagher,  47. 

Greenleaf  v.  Hamilton,  46,  48. 

Gregg  V.  Page  Belting  Co.,  192,  193. 

Greer  v.  Whalen,  187. 

Grisinger  v.  Hubbard,  184,  190. 

Groat  V.  Gile,  24. 

Grocery  Co.  v.  Clements,  69. 

Groomer  v.  McMillan,  275,  277. 

Groves  v.  Buck,  233. 

Gruen  v.  Geo.  A.  Ohl  &  Co.,  312. 

Gunter  v.  Lecky,  10. 

Gurwell  v.  Morris,  242. 

Gustine  v.  Phillips,  134. 


Haak  v.  Linderman  &  Speer,  207. 

Habeler  v.  Rogers,  97. 

Hager  v.  Henneberger,  289. 

Halff  V.  Allyn,  143. 

Hall  V.  Boston,  etc.,  R.  R.  Co.,  70,  179. 

Hall  V.  French  American  Wine  Co.,  335. 

Halliday  v.  Hyland,  154. 

Hallidie  v.  Sutter  St.  Ry.  Co.,  7. 

Hallock  v.  Cutler,  190. 

Halsey  v.  Simmons,  65,  68,  179. 

Hamet  v.  Letcher,  227. 

Hamil  v.  Flowers,  72. 

Hamilton  v.  Gordon,  28. 

Hamilton  v.  Russoll.  213,  215,  218. 

Hamilton  v.  State,  253. 

Hamilton  Iron,  Etc.  Co.  v.  Groveland,  Etc.  Co.,  331. 


TABLE  OF  CASES  353 


[references  are  iO  THE  PACES.] 

Hamra  Bros.  v.  Herrell,  33. 

Haukwitz  v.  Barrett,  242. 

Hanna  v.  Mills,  110. 

Hanna  v.  Phelps,  122. 

Hanson  v.  Meyer,  21,  22,  24. 

Hanson  v.  Wittenberg,  330,  332. 

Hansen  &  Parker  v.  Wittenberg,  328. 

Hardie  v.  Railroad,  211. 

Harding  Paper  Co.  v.  Allen,  13ti. 

Hardwick  v.  Can  Co.,  92. 

Hargous  v.  Stone,  186. 

Harkness  v.  Russell,  207. 

Harley  v.  Stanley,  101. 

Harper  v.  Baird's  Admr.,  158. 

Harper  v.  State,  51. 

Harrell  v.  Miller,  248. 

Harrington  v.  King,  176. 

Harris  v.  Waite,  174. 

Harrod  v.  Myers,  230. 

Hart  V.  Boston  &  M.  R.  R.,  212. 

Hartin  v.  Pelt,  193. 

Hartley  v.  Rotman,  294. 

Harvey  v.  Harris,  183. 

Harvey  v.  Harvey,  74. 

Haskell  v.  Hunter,  156. 

Haskell  v.  Tukesbury,  255,  261,  262. 

Haskins  v.  Warren,  112,  115. 

Hatch  V.  Gluck,  267. 

Hatch  V.  McBrien,  242. 

Hathaway  v.  Bennett,  12. 

Hatstat  V.  Blakeslee,  216. 

Hauptman  v.  Miller,  302. 

House  V.  Judson,  140,  143. 

Hawens  v.  Grand  Island  L.  &  F.  Co.,  51. 

Hawkins  v.  Hersey,  103. 

Hawkins  v.  Pemberton,  172,  173. 

Hayes  v.  Kluge,  317. 

Hayes  v.  Nashville,  126,  130. 

Hayes  v.  Stortz,  157. 

Haynes  v.  Quay,  76. 

Haynes  v.  Temple,  105. 

Hays  V.  Jordan,  103,  178. 

Hays  V.  Mouille  &  Co.,  118,  134,  140,  143. 

Heavey  v.  Com.  Nafl  Bank,  229. 

Hegler  v.  Eddy,  102. 

Heller  v.  Elliott,  106.  109. 

Henderson  v.  Lauer  &  Son,  38,  55. 

Hennequin  v.  Naylor,  150. 


354  TABLE  OF  CASES 

[references  are  to  the  paces.] 

Henson  v.  King,  186. 

Hepp  V.  Glover,  140,  143. 

Heilbronn  v.  Herzog,  110. 

Heilbum  Leather  Co.  v.  Stone,  302. 

Heilbut  V,  Buckleton,  189. 

Heinekey  v.  Earle,  136. 

Heiser  v.  Mears,  75,  90. 

Herbert  v.  Bronson,  75. 

Herbert  v.  Rhodes,  274. 

Herman  H.  Hettler  Lumber  Co.  v.  Olds,  316. 

Hershey  Lumber  Co.  v.  St.  Paul,  etc.  Co.,  277, 

Hervey  v.  Dimond,  177. 

Hersberg  v.  Welsh,  277. 

Hesslg-Ellis  Drug  Co.  v.  Priesmeyer,  31. 

Hewes  v.  Germain  Fruit  Co.,  90. 

Hewson  v.  Peterman  Mfg.  Co.,  244,  245,  276. 

Hewson-Herzog  Co.  v.  Minnesota  Brick  Co.,  154. 

Hickman  v.  Dill,  74. 

Higgins  V.  Kusterer,  245. 

Higgins  V.  Murray,  236. 

Higgins  V.  Spahr,  214. 

Hight  V.  Harris,  213. 

Hill  V.  Anderson,  230. 

Hill  V.  Fruita  Mercantile  Co.,  51,  52. 

Hill  V.  McKay,  88. 

Hill  V.  Smith,  157. 

Hilliard  v.  Weeks,  242. 

Hirsch  v.  Lumber  Co.,  33. 

Hirth  V.  Graham,  248. 

H.  M.  Tyler  Lumber  Co.  v.  Charlton,  27. 

Hobbs  V.  Bibb,  213. 

Hobbs  V.  Carr,  215. 

Hochberger  v.  Baum,  226. 

Hodgkins  v.  Bond,  254. 

Hoe  V.  Rex  Mfg.  Co.,  103. 

Hoffman  v.  American  Ebcchange  Bank,  229. 

Hoffman  v.  Culner,  27. 

Hoffman  v.  King,  170. 

Hobart  Elec.  Co.  v.  Rooder,  104. 

Holbrook  v.  Vose,  220. 

Holland  v.  Cincinnati  Co.,  61. 

Holland's  Assee.  v.  Cincinnati  Co.,  147. 

Hollenberg  Music  Co.  v.  Barron,  101,  177. 

Holliday  v.  Lesh,  88. 

Holiday  v.  McKinnie,  218. 

Holroyd  v.  Marshall,  80. 

Holt  Mfg.  Co.  V.  Ewing,  105. 

Home  Pattern  Co.  v.  Mertz,  301. 


TABLE  OF  CASES  355 

[references  are  to  the  paces.] 

Hoover  v.  Maher,  47. 

Hopkins  v.  Tanqueray,  197. 

Hoskins  v.  Warren,  111.  .' 

Hosmer  v.  Wilson,  111. 

Howard  v.  Hoey,  173. 

Howatt  V.  Vargas,  134, 

Howe  V.  Hayward,  275. 

Howell  V.  Crawford,  148. 

Houghtaling  v.  Hills,  147. 

Houk  V.  Berg,  194. 

Hoyer  v.  Good,  184. 

Hoyt  V.  Holly,  12. 

Hudnut  V.  Weir,  275. 

Hudson  V.  Emmons,  272. 

Hudson  V.  Swan,  122. 

Huebler  v.  Smith,  216. 

Hughes  V.  Knott,  19-33. 

Hull  V.  Hull,  82,  85. 

Humble  v.  Mitchell,  243. 

Hunt  V.  Wyman,  7. 

Hunter  v.  Hudson  River,  Etc.  Co.,  149. 

Hurff  V.  Hires,  66,  179. 

Hurley-Mason  Co.  v.  Stebbings,  174,  180. 

Hurst  &  McWhorter  v.  Bell  &  Co.,  80,  85. 

Huschle  V.  Morris,  215,  218. 

Hutchinson  v.  Ford,  85. 

H.  W.  Williams  Transportation  Co.  v.  Darius  Cole  Co.,  184. 

Hyden  v.  Demets,  47. 


Idaho,  The,  212. 

Ide  &  Smith  v.  Stanton,  232. 

Ilsley  V.  Stubbs,  137,  220. 

Inchbold  v.  Western  Etc.  Co.,  111. 

Ingalls  V.  Herrick,  215. 

Int.  &  G.  N.  Ry.  v.  Searight,  280. 

International  Harvester  Co.  v.  Brown,  184. 

International  Textbook  Co.  v.  Martin,  94. 

International  Textbook  Co.  v.  Schulte,  89. 

Interstate  Grocer  Co.  v.  Bentley,  190. 

Iron  Cliff  Co.  v.  Buhl,  68. 

Iron  Wks.  v.  Paddock,  102. 

Irwin  V.  Knox,  232,  235. 

Isaacs  V.  Hardy,  235. 

Ives  V.  Carter,  185. 


356  TABLE  OF  CASES 

[beferences  are  to  the  paces.] 


Jackson  v.  Coverts'  Admr.,  232,  235. 
Jackson  v.  Stanfield,  280. 
Jackson  v.  Watson  &  Sons,  186. 
Jacob  V.  Smith,  281. 
Jacobs  V.  Bentley,  140. 
Jacobs  V.  Latour,  120. 
Jamieson  v.  Heim,  229. 
Jarrell  v.  Young,  268. 
Jeffries  v.  Fitchburg  R.  R.,  133,  136. 
Jelks  V.  Barrett,  256. 
Jendwyn  v.  Slade,  173. 
Jenkyns  v.  Brown,  55. 
Jeraulds  v.  Brown,  69. 
Jewett  V.  Lincoln,  215,  218. 
Jewett  Pub.  Co.  v.  Butler,  119,  133. 
Joffray  v.  Wolf,  110. 
John  B.  Ketcham,  The,  78. 
Johnson  v.  Buck,  255,  257. 
Johnson  v.  Credit  Lyonaise  Co.,  204. 
Johnson  v.  Cuttle,  269. 
Johnson  v.  Bveleth,  136. 
Johnson  v.  Hibbard,  47,  50. 
Johnson  v.  Holloway,  218. 
Johnson  v.  Layboum,  190. 
Johnson  v.  McDaniel,  185. 

Johnson  v.  Morrison,  277. 

Johnson  v.  Mulvy,  244. 
Johnson  v.  Tabor,  18,  276. 
Johnson-Brinkman  Co.  v.  Central  Bank,  35. 

Johnson  etc.  Co.  v.  Missouri  Pacific  R.  R.,  149. 

Johnston  v.  Milwaukee,  Etc.  Co.,  208. 

Jones  V.  Adams,  245. 

Jones  V.  Brown,  110. 

Jones  V.  Earl,  145. 

Jones  V.  Jennins,  47. 

Jones  V.  Jennings  Bros.,  94. 

Jones  V.  Joyner,  256. 

Jones  V.  .Tust,  191. 

Jones  V.  Mechanics  Bank,  268. 

Jones  V.  Newberry,  213. 

Jones  V.  U.  S.,  36. 

Jones  V.  Wattles,  278. 

Jones  V.  Webster,  85. 

Jones  V.  Witousek  Co..  181,  184. 

Jordan  v.  James,  147. 

Joseph  V.  Brandy,  42. 


TABLE  OF  CASES  357 


[references  are  to  the  pages.] 

Joyce  V,  Adams,  29,  157. 
Juilliard  v.  Trokle,  235,  236, 
Julian  V.  Laubenberger,  191-195. 

K 

Kahnweiler  v.  Buck,  136. 

Kammrath  v.  Kidd,  245. 

Kane  v.  Roberts,  218. 

Karren  v.  Madden,  242. 

Kaufman  v.  Schulling,  68. 

Kavanaugh  Mfg.  Co.  v.  Rosen,  119,  133. 

Kearney  v.  Union  Pac.  R.  R.  Co.,  126,  131,  147. 

Keeler  v.  Goodwin,  69. 

Kein  v.  Tupper,  24,  27. 

Keller  v.  Strasburger,  109. 

Keller  v.  Texas,  36. 

Kellog  V.  Frolich,  90,  92. 

Kellogg  V.  Witherhead,  237. 

Kelly  V.  Thompson,  383. 

Kelsey  v.  J.  W.  Ringrose  Co.,  296,  330. 

Kemensky  v.  Chapin,  259,  266,  269. 

Kemp  V.  Falk,  220. 

Kendall  v.  Marshall,  132. 

Kennebrew  v.  Cutler,  190. 

Kerr  v.  Crane,  85. 

Ketcham  v.  Brennan,  204. 

Ketcham  v.  Cummings,  178. 

Killmore  v.  Howlett,  248. 

Kilmer  v.  Moneyweight  Co.,  101. 

Kimball  v.  Costa,  120. 

Kimberly  v.  Patchin,  64,  65,  67. 

King  V.  Waterman,  111. 

King  V.  Welcome,  283. 

Kingman  v.  Holmquist,  70. 

Kingman  &  Co.  v.  Denison,  140. 

Kingsford  v.  Merry,  306. 

Kingsley  v.  Holbrook,  246,  248. 

Kingsley  v,  Siebrecht,  255.  259,  262. 

Kinkead  v.  Lynch,  97. 

Kinney  v.  Horwltz,  303. 

Kinschman  v.  Crawford  Plummer  Co.,  314. 

Kirby  v.  Thompkins,  103. 

Kirkeby  v.  Erickson,  248. 

Kirkpatrick  v.  Kepler,  294. 

Kleine  v.  Baker,  51,  52. 

Klein  v.  Siebold,  202. 

Knapp  V.  Beach,  252. 


358  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Knight  V.  Barker,  243. 

,Knights  V.  Whiffen,  67-68. 

Koewing  v.  Wilder,  276. 

Kohn  V.  Bantz,  277. 

Koner  v.  Madden,  244. 

Koster  v.  Koedding,  268. 

Kramer  v.  Messner,  147. 

Kratz  V.  Stocks,  281. 

Krebs  Hop  Co.  v.  Livesley,  88,  97. 

Kreisle  v.  Wilson,  249. 

Kribbs  v.  Alford,  78. 

Kuehn  v.  Wilson,  181. 

Kuhus  V.  Gates,  241. 

Kupenheimer  v.  Wertheimer,  162. 

Kutz  V.  Flersher,  242. 


Ladd  V.  Brewer,  202,  206. 

Ladnier  v.  Ladnier,  265. 

Laffey  v,  Kaufman,  282. 

Laidler  v.  Burlinson,  78. 

Lamb  v.  Crafts,  239. 

Lamb  v.  Utley,  115. 

Lamphrey  v.  Sargent,  70. 

Lancaster  v.  So.  Ins.  Co.,  101, 

Lancaster  Co.  Bank  v.  Huver,  118,  132. 

Landecker  v.  Bank,  253. 

Land  Title  &.  Tr.  Co.  v.  Northwestern  Bank,  229. 

Lane  v.  Chadwick,  38. 

Langfort  v.  Admx.  of  Tyler,  122. 

Langridge  v.  Levy,  185. 

Langstroth  v.  J.  C.  Turner  Co.,  259. 

Langton  v.  Higgins,  54. 

Lanfear  v.  Sumner,  214,  215. 

Lassing  v.  James,  24. 

Laundry  Co.  v.  Whitmore,  244,  290,  334. 

Lavally  v.  Ravenna,  101. 

Lawrence  v.  McKenzie,  120. 

Lawry  v.  Ellis,  69. 

Lawton  &  Sons  Co.  v.  Mackle  Grocery  Co.,  168. 

Leahy  v.  Essex  Co.,  11. 

Leather  Cloth  Co.  v.  Hieronimus,  279. 

Leavitt  v.  Fiberoid  Co  ,  196-198. 

Leeper  v.  Schroeder,  92. 

Leesley  Bros.  v.  Fruit  Co.,  256,  258. 

Lee  V.  Griffin,  234. 

Lee  V.  Kimball,  222. 


TABLE  OF  CASES  859 

[references  are  to  the  pages.] 


Lee  V.  Wilkins,  226. 

Lehmberg  v.  Biberstein,  218. 

Leighton  v.  Stevens,  207. 

Lemon  v.  Randall,  283. 

Leonard  v.  Davis,  27. 

Leonard  v.  Medford,  248,  266,  271. 

Leopold  V.  Van  Kirk,  174. 

Lerner  v.  Wannemacher,  258. 

Lester  v.  East,  19,  24. 

Lentz  V.  Flint  &  P.  M.  Ry.,  33. 

Levi  V.  Booth,  203,  205,  226. 

Levi  V.  Bray,  226. 

Levy  V.  Radkay,  54,  301. 

Levenberg  v.  Hayes,  206. 

Lewis  V.  Greider,  88. 

Lewis  V.  Rountree,  175. 

Lewis  V.  Swift,  215. 

Lichtenstein  v.  Rabolinski,  186. 

Lightburn  v.  Cooper,  184. 

Lickbarrow  v.  Mason,  17,  62,  221. 

Lincoln  v.  Chas.  Alshuler  Mfg.  Co.,  52. 

Lincoln  v.  Gallagher,  160. 

Lincoln  v.  Guynn,  207. 

Lincoln  Shoe  Co.  v.  Sheldon,  94. 

Lingham  v.  Eggleston,  21,  25,  26,  27,  28, 

Linton  v.  Porter,  189. 

Lipper  Mfg.  Co.  v.  Morris  &  Co.,  52. 

Lippincott  v.  Rich,  103,  206. 

Lissberger  v.  Kellogg,  295. 

Litt  v.  Cowley,  144. 

Little  V.  Daugherty,  257. 

Littlefield  v.  Perry,  74. 

Little  Rock  Bank  v.  Frank,  149. 

Little  Rock  Etc.  Co.  v.  Page,  80. 

Livesley  v.  Johnston,  153,  158,  159,  163. 

Lloyd  V.  Wright,  267. 

Load  V.  Green,  149,  226. 

Lobdell  V.  Stowell,  64. 

Loeb  &  Bros.  v.  Peters,  118,  132. 

Loeffel  V.  Pohlman,  149. 

Logan  V.  Carroll,  277. 

Long  Pole  Co.  v.  Saxon,  etc.  Co.,  154. 

Loomis  V.  O'Neal,  64. 

Lorain  Steel  Co.  v.  Norfolk  R.  R.  Co.,  103,  206. 

Lord  V.  Buchanan,  176. 

Lord  V.  Jones,  122. 

Lorymer  v.  Smith,  159. 


360  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Losecco  V.  Gregory,  83. 
Loveland  v.  Dinunan,  51,  52. 
Lovell  V.  Newman  &  Son,  47,  58. 
Low  V.  Pew,  1,  71,  72,  83. 
Lowther  v.  Lowther,  153. 
Lucas  V.  Birdsey,  216. 
Lukens  v.  Freund,  194. 
Lynch  v.  Curfman,  193. 
Lynch  v.  Merrill,  28. 
Lynch  v.  O'Donnell,  29. 

M 

MacEvoy  v,  Aronson,  271. 

MacKellar  v,  Pillsbury,  70. 

MacLean  v.  Dunn,  124,  126. 

Macomber  v.  Parker,  27. 

Magee  v.  Bllllngsley,  162. 

Magnes  v.  Sioux  City  Co.,  91,  97. 

Mahan  v.  United  States,  231,  281. 

Makaness  v.  Long,  147. 

Mallory  v.  Willis,  7. 

Manchester  Loco.  Works  v.  Truesdale,  34. 

Manhattan  etc.  R.  R.  Co.  v.  Genl.  Elec.  Co.,  87,  89,  94,  96. 

Mann  v.  Everston,  174. 

Manson  v.  Dayton,  105. 

Manti  City  Savings  Bk.  v.  Peterson,  65. 

Manufacturing  Co.  v.  Cereal  Co.,  111. 

Mapes  V.  Burns,  149. 

Marion  Mfg.  Co.  v.  Buchanan,  101. 

Marks  v.  Cowdin,  251,  257. 

Marling  v.  Fitzgerald,  208. 

Marshall  v.  Green,  248. 

Martin  v.  Green,  228. 

Martindale  v.  Smith,  125-126. 

Martineau  v.  Kitchin,  28,  59. 

Mashburn  &  Co.  v.  Dannenburg  Co.,226. 

Maskelinski  v.  Wazinenski,  75. 

Massman  v.  Steiger,  94. 

Master  v.  EJmerson,  75. 

Mather  v.  Scales,  279. 

Matteson  v.  Equitable  Mining  Co.,  109. 

Matthews  v.  Lucia,  104. 

Matthieson  Co.  v.  McMahon,  266. 

Mayer  v.  Clark,  213. 

Mayo  V.  Lathern,  87. 

Mayor  v.  Town  of  Harrison,  245. 

Maxwell  v.  Lee,  174. 


TABLE  OF  CASES  361 

[references  are  to  the  paces.] 

McCall  V.  Hampton,  75. 

McCarty  v.  Blevins,  81,  85. 

McClure  v.  Central  Trust  Co.,  187. 

McCollom  V.  Minnesota  etc.  Ry.  Co.,  301. 

McCormick  Co.  v.  Market,  97. 

McCormick  Harvester  Co.  v.  Balfany,  94. 

McCormick  Mach.  Co.  v.  Cusack,  269,  273. 

McCracken  v.  Webb,  88. 

McCully  V.  Hardy,  19. 

McDonald,  in  re,  78. 

McDonald  v.  Goodkind,  149. 

McDonald  Cotton  Co.  v.  Mayo,  91,  92. 

McDonough  v.  Prescott,  217. 

McElroy  v.  Seery,  140. 

McElwee  v.  Metropolitan  Lumber  Co.,  30,  111,  112,  115,  116,  220. 

McEvoy  V.  Aronson,  268. 

McEwan  v.  Smith,  220. 

McFadden  v.  Shanley,  328. 

McFadden  &  Bro.  v.  Appleton,  27. 

McFarland  v.  Wheeler,  115. 

McGaughey  v.  Richardson,  197. 

McGill  V.  Chilhowee  Lumber  Co.,  114. 

McGraw  v.  Hanway,  287. 

McHenry  v.  Nat'l  Bk.,  229. 

Mcllvain  v.  Harris,  245. 

McKinnie  v.  Harvie,  282. 

McKnight  v.  Dunlap,  27,  264. 

McLaughlan  v.  Marston,  31. 

McLure  v.  Sherman,  277. 

McMaster  v.  Emerson,  75. 

McMillen  v.  Terrell,  254. 

McMorris  v.  Webb,  230. 

McNeil  V.  Tenth  Nat'l  Bk.,  209. 

McReynolds  v.  People,  68. 

Mead  v.  Case,  237. 

Meade  v.  Smith,  18,  216. 

Meader  v.  Cornell,  157. 

Mechanical  Boiler  Co.  v.  Kellner,  267. 

Mechanics  &  Traders  Bank  v.  Farmers  etc.  Bk.,  212. 

Memphis  etc.  R.  R.  Co.  v.  Freed,  142. 

Menke  v.  First  Nat'l  Bk,  207. 

Merchants  Bank  v.  Hibbard,  68. 

Merchants  Bank  v.  Lovejoy,  80. 

Merchants  Nat'l  Bk.  v.  Bates,  212. 

Mercer  Nat'l  Bank  v.  Hawkins,  69. 

Mercantile  Nat'l  Bk  v.  Silverman,  229. 

Merrill  v.  Hodson,  11,  287,  296. 


362  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Merritt  v,  Clayson,  252,  253, 

Mertz  V.  Putnam,  70. 

Mertz  V.  Stewart,  207. 

Messenger  v.  Murphy,  176. 

Meyer  v.  Pacific  Machine  Co.,  104. 

Meyer  v.  Shapton,  288. 

Meyers  v.  McAlister,  112. 

Michels  v.  "West,  278,  279,  283. 

Mich.  Cent.  Ry.  v.  Phillips,  22,  207. 

Mighell  V.  Dougherty,  245. 

Miles  V.  Gorton,  113. 

Millard  v.  Green,  307. 

Miller  v.  Browarski,  211. 

Miller  v.  Chapel,  85. 

Miller  v.  Shrever,  217. 

Miller  v.  Steen,  177. 

Miller  &  Brown,  in  re,  7. 

Miller  Milling  Co.  v.  Butterfield  etc.  Co.,  21. 

Milliken  v.  Skillings,  184. 

Milner  &  K.  Co.  v.  De  Loach  Mill  Co.,  202. 

Milos  V.  Covacewitch,  276,  277. 

Milwaukee  Boiler  Co.  v.  Duncan,  193. 

Miner  v.  Bradley,  157. 

Mineral  Land  Co.  v.  Jackson,  248. 

Minus  V.  Morse,  282. 

Mirabita  v.  Imperial  Ottoman  Bank,  57. 

Missouri  Pacific  R.  R.  Co.  v.  Heidenheimer,  222,  224. 

Mitchell  V.  Abernathy,  42,  82. 

Mitchell  V.  Le  Clair,  44. 

Mixer  v.  Howarth,  240. 

Mizell  V.  Burnett,  248. 

M'Lean  v.  Green,  193. 

Moakes  v.   Nicholson,  60. 

Moats  V.  Strange  Bros.  Hide  Co.,  21. 

Moffat  V.  Davitt,  87. 

Mohr  V.  Boston  &  A.  R.  R.  Co.,  112. 

Mohr  Hardware  Co.  v.  Dubey,  87. 

Moline  Plow  Co.  v.  Rodgers,  106. 

Moline  Scale  Co.  v.  Beed,  97. 

Moller  V.   Tuska,  149. 

Moneyweight  Scale  Co.  v.  David,  198. 

Monroe  v.  Trenton  Co.,  314. 

Moody  V.  Brown,  47,  78,  94. 

Moore  v.  Potter,  92,  123. 

Mordaunt  Bros.  v.  The  British  Oil  etc.  Co.,  325. 

More  V.  Lott,   132,  133. 

Moriarty  v.  Stofferan,  150. 


TABLE  OF  CASES  363 

[references  are  to  the  pages.] 


Morrill  v.  Noyes,  80. 

Morris  v.  Baron  &  Co.,  282. 

Morris  v.  Hix,  75. 

Morris  v.  Rexford,  115. 

Morrow  v.  Reed,  21,  28. 

Morse  v.  Moore,  175. 

Morse  v.  Union  Stock  Yards,  175. 

Moses  Co.  V.  Stack-Gibbs  Co.,  261. 

Mosler  Safe  Co.  v.  Thore,  316. 

Moss  V.  Culver,  11. 

Motbram  v.  Heyer,  138,  144. 

Mount  Hope  Co.  v.  Buffington,  27. 

Mower  v.  McCarty,  80,  242. 

Mucklow  V.  Mangles,  73. 

MuUiner  v.  Florence,  122. 

Munroe  v.  Pbila.  Warehouse  Co.,  210. 

Murchie  v.  Cornell,  188. 

Murphy  v.  De  Haan,  283. 

Murphy  v.  Moon  Motor  Car  Co.,  293. 

Murray  v.  Doud,  87. 

Muskegon  Booming  Co.  v.  Underbill,  139. 

Mutual  Mills  Co.  v.  Gordon,  281. 

Myers  Bros.  Drug  Co.  v.  McKinney,  236. 

N 

National  Bank  v.  Baltimore  &  O.  R.  R.  Co.,  210,  226. 

National  Bank  v.   Schmidt,  222. 

National  Cash  Register  Co.  v.  Dehn,  100. 

National  Cash  Register  Co.  v.  Hill,  100. 

National  Contracting  Co.  v.  Vulcanite  Etc.   Co.,  293. 

National  Cotton  Oil  Co.  v.  Young,  194. 

Neal  V.  Boggan,  147. 

Neimeyer  Lumber  Co.  v.  Burlington  R.  R.,  32. 

Nelson  v.  Armour  Packing  Co.,  199. 

Nelson  v.  Good,  217. 

Nelson  v.  Hirsch  &  Sons  Co.,  91,  126. 

Nelson  v.  Shelby  Mfg.  Co.,  283. 

Neppach  v.  Oregon  etc.  R.  R.  Co.,  283. 

Nestell  V.  Hewitt,  82. 

Newark  City  Ice  Co.  v.  Fisher,  89. 

Newberger  v.  Rountree,  130. 

Newbrook  v.  Ryan,  35. 

Newby  v.  Rogers,  252. 

Newcomb  v.  Boston  &  Lowell  R.  R.,  57. 

Newell  V.  Smith,  183. 

New  England  Iron  Co.  v.  Gilbert,  220. 

New  England  etc.  Co.  v.  Standard  etc.  Co.,  271. 


364  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Newhall  v.  Cent.  Pac.  R.  R.,  222,  223. 

Newhall  v.  Vargas,  134,  137,  138,  145,  147. 

New  Home  etc.  Co.  v.  Bothane,  176. 

Nichols  V.  Clark,  235,  244. 

Nichols  V.  Michael,  150. 

Nichols  V.  Scranton  Steel  Co.,  110. 

Nomordust  Co.  v.  Eberts  &  Co.,  53-54. 

Norfolk  Co.  V.  N.  Y.,  N.  H.  &  H.  R.,  139. 

Norfolk  Hardwood  Co.  v.  N.  Y.  C.  R.  R.  Co.,  320,  322. 

Norrington  v.  Wright,  168,  169. 

North  V.  Foster,  244. 

North  V.  Mendel,  257. 

North  Alaska  Salmon  Co.  v.  Hobbs,  181,  184. 

Northern  Grain  Co.  v.  Whiffler,  320. 

Northey  v.  Field,  144. 

Northwestern  Mutual  Life  Ins.  Co.  v.  Helman,  280. 

Norton  v.  Woodruff,  7. 

Nugent  V.  Beakes,  263. 


Obery  v.  Lauder,  19. 

O'Brien  v.  Norris,  132,  133,  143. 

Ocean  S.  S.  Co.  v.  Ehrlich,  220. 

Ocean  S.  S.  Co.  v.  Southern  States  Naval  Stores  Co.,  33,  207. 

Odell  V.  Boston  &  Me.  R.  R.,  26. 

Ogelesby  Co.  v.  Williams  Co.,  259. 

Ogg  V.   Shuter,  126. 

Ogle  V.  Atkinson,  59. 

Ohio  Elec.  Co.  v.  Wisconsin  etc.  Co.,  296. 

O'Keefe  v.  Kellog,  19. 

Oklahoma  Moline  Plow  Co.  v.  Smith,  1. 

Olcese  V.  Mobile  Fruit  Co.,  126. 

O'Leary  v.  Bradford,  215. 

Oliphant  v.  Baker,  1. 

Oliver  Ditson  Co.  v.  Bates,  202. 

O'Neill  V.  Thompson,  202. 

Orcutt  V.  Moore,  80. 

Orcutt  V.  Pew,  83. 

Orcutt  V.  Rickenbrodt,  106. 

Orr  V.  Leathers,  110. 

Osborn  v.  Gantz,  34,  159,  185. 

Osborne  v.  Tuller,  217,  218. 

Osgood  V.  Skinner,  97. 

Oswego  Starch  FactoiT  v.  Lendrum,  148,  150,  226. 

Otis  Elevator  v.  Headley,  317. 

Owon  V.  Dixon,  26. 

Owens  V.  Lewis,  248. 


TABLE  OF  CASES  365 

[references  are  to  the  paces.] 


Pacific  Express  Co.  v.  Shearer,  229. 

Palewski  v.  Hargreaves,  236. 

Palmer  v.  Hand,  115. 

Palmer  v,  Howard,  207. 

Palmer  v,  Kelly,  103. 

Pardee  v.  Kanaday,  126,  220. 

Parke  Co.  v.  White  River  Co.,  105. 

Parker  v.  Davis,  19. 

Parker  v.  Dinsmore,  227. 

Parker  v.  Wallis,  266. 

Parsons  v.  Loucks,  239. 

Parsons  v.  Sutton,  154. 

Passenger  v.  Thorburn,  199. 

Patch  v.  Tutin,  85. 

Patchin  v.  Rowell,  307. 

Paterson  v.  Tash,  206. 

Patterson  v.  Culton,  131,  220, 

Paul  V.  Reed,  22. 

Payne  v.  June,  206. 

Pearce  v.  Gardner,  255. 

Pease  v.  Teller  Corp.,  177. 

Peeters  v.  State,  15. 

Pelham  v.  Chattahoochee  Grocery  Co.,  226. 

Peninsular  Bank  v.  Citizens  Nat'l  Bank,  303. 

Penn  v.  Smith,  88. 

Pennock  v.  Coe,  80. 

Pennsylvania  R.  R.  Co.'s  Appeal,  209. 

Pentland  v.  Jacobson,  296. 

People  V.  Brewing  Co.,  36. 

People  V.  Clair,  11. 

People  V.  Converse,  36. 

People  V.  Munson,  185. 

People's  State  Bank  v.  Brown,  33. 

Perkins  v.  Grobben,  102. 

Perkins  v.  Halpren,  17. 

Perrlne  v.  Barnard,  111,  220. 

Peters  v.  Cooper,  87,  88. 

Petigor  v.  Ward,  89. 

Petty  V.  Petty,  281. 

Peyck  Bros.  v.  Ahrens,  258. 

Pfeifer  v.  Norman,  103. 

Phelps  V.  Elyria  Milling  Co.,  199. 

Phelps  v.  McQuade,  228. 

Philadelphia  Whiting  Co.  v.  Detroit  Lead  Works,  160,  161,  163. 

Philbrook  v.  Belknap,  282. 


^^^  TABLE  OF  CASES 

[references  are  to  the  paces.] 
Phillips  V.  Brooks,  228. 
Phillips  V.  Ocmulgee  Mills,  279. 
Phillips  V.  Winslow,  80. 
Piano  Co.  v.  Piano  Co..  21,  22.  33,  298   307 
Piazzek  v.  White,  65,  179. 
Picard  v.  McCormick.  11,  188. 
Pickering  v.  Busk,  204.    '        *  * 

Pickering  v.  Dawson,  185. 
Pickett  V.  Bullock,  112. 
Pierce  v.  Milwaukee  etc.  R.  R.,  80. 
Pierson  v.  Crooks,  163,  170. 
Pilgreen  v.  State,  36. 
Pillsbury  Flour  Co.  v.  Walsh,  92. 
Pinckney  v.  Bailing,  29. 
Piner  v.  Cover,  218. 
Pinkham  v.  Mattox,  264,  267.  268,  270 
Piowaty  v.  Sheldon,  88. 
Pitkin  V.  Noyes,  236,  242. 
Pittsburgh  etc.  Co.  v.  Cudahy  Co.,  21   303 
Pittsburgh  etc.  R.  R.  Co.  v.  Piatt,  87.' 
Platter  v.  Acker,  153. 
Poconoket,  The,  78.  ■'■ 

Poel  V.  Brunswick  etc.  Co.,  87,  256,  260 
Polenghi  Bros.  v.  Dried  Milk  Co.,  168 
Poling  V.  Flanagan,  18,  217. 
Pollard  V.  Reardon,  211. 
Pollen  V.  Le  Roy,  90.  92,  129. 
Pontifex  v.  Midland  R.  R.,  145 
Poole  V.  H.  &  T.  C.  Ry.  Co..  223. 
Pope  V.  Ferguson.  328,  333. 
Pope  V.  Porter,  61,  170. 
Port  Carbon  Iron  Co.  v.  Groves,  193. 
Porter  v,  Wormser.  125. 
Potter  V.  Cowand,  121. 

Potter  Press  Co.  v.  Newark  Daily  etc.  Co..  293,  318 
Power  V.  Barham,  172. 
Powers  V.  Briggs,  197. 
Powers  V.  Dodgson,  314. 
Prater  v.  Campbell,  199. 
Pratt  V.  Higginson,  209. 
Pratt  V.  S.  Freeman  &  Sons  Co.,  91,  117. 
Pray  v.  Mitchell,  244. 
Pregnall  v.  Miller,  217. 
Prentice  v.  Page,  202,  203,  206. 
Prescott  V.  Locke,  236. 

Presley  Fruit  Co.  v.  St.  Louis  etc.  R.  R.,  51. 
Preston  v.  Whitney,  178. 


TABLE  OF  CASES  367 

[references  are  to  the  pages.] 


Prlngle  v.  Rhame,  217. 

Proctor  V.  Atlantic  Fish  Co.,  296. 

Proctor  V.  Thompson,  283. 

Proctor  &  Gamble  Co.  v.  Peters,  White  &  Co.,  301. 

Puffer  Mfg.  Co.  v.  Krum,  330. 

Puffer  &  Sons  v.  Lucas,  178. 

Pullman  Car  Co.  v.  Metropolitan  Ry.  Co. 

Purcell  V.  Miner,  11. 

Purdom  Naval  Stores  Co.  v.  Western  Union  Co.,  281. 

Purner  v  Piercy,  246. 

Pusey  V.  Pusey,  153. 

Putnam-Hooker  Co.  v.  Hewins,  293. 


Quemahoning  Coal  Co.  v.  Sanitary  etc.  Co.,  296. 
Quinn  v.  Davis,  206. 

R 

Race  V.  Krum,  11,  296. 

Railroad  Co.  v.  Plant,  111, 

Rains  v.  Patton,  259. 

Raleigh  &  G.  R.  R.  Co.  v.  Lowe,  212. 

Ramey  v.  Smith,  105. 

Randle  v.  Stone,  101.  - 

Range  Co.  v.  Mercantile  Co.,  97. 

Rankin  v.  Schultz,  215. 

Rappleye  v.  Racine  Seeder  Co.,  126. 

Ratchford  v.  Cuyahoga  Co.,  104. 

Rauber  v.  Sundback,  4. 

Rausberger  v.  Ing,  197. 

Raymond  v.  Bearnard,  125. 

Raymond  v.  Colton,  270. 

Raymond  Co.  v.  Kahn,  103. 

Reade  v.  Livingston,  218. 

Redd  v.  Burruss,  80. 

Redhead  Bros.  v.  Investment  Co.,  88. 

Reed  v.  McGrew,  282. 

Reed  v.  Randall,  158,  164,  173,  174. 

Regina  Co.  v.  Gately  Co.,  185. 

Regina  v.  Hehir,  183. 

Reichard  v.  Hutton,  306. 

Reid,  Murdoch  &  Co.  v.  Sheffy,  226. 

Reiger  v.  Worth,  199. 

Reissner  v.  Oxley,  5. 

Revenue  Cutter  No.  2,  in  re,  78. 

Rex  V.  Birmingham  Profiteering  Com.,  12,  235. 


368  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Rex  V.  Wood  Green  Profiteering  Com.,  12,  235. 

Reynolds  v.  Gen'l  Elec.  Co.,  195. 

Reynolds  v.  Railroad,  118,  119,  131,  132,  138,  145. 

Rice  V.  Friend  Bros.,  184. 

Rice  V.  Manley,  280. 

Richards  v.  Burrows,  268. 

Richardson  v.  G.  W.  Mfg.  Co.,  176. 

Richardson  v.  Insurance  Co.,  19,  20,  34. 

Richardson  v.  Smith,  271,  272. 

Richardson  etc.  Co.  v.  Goodkind,  151. 

Rickey  v.  Tenbroek,  87,  270. 

Rider  v.  Kelley,  46. 

Ridgley  v.  Mooney,  88,  94,  130. 

Rigby  V.  Gaymon,  260. 

Riley  v.  Bancroft's  Est.,  263,  279. 

Riley  v.  Dillon,  207. 

Rinaldi  v.  Molucan,  196. 

River  Spinning  Co.  v.  Atlantic  Mills,  47. 

Rhodes  v.  Mooney,  119. 

Roach  V.  .Johnson,  148. 

Roach  V.  Whitfield,  101. 

Robbins  v.  Chipman,  24,  75. 

Robbins  v.  Farwell,  248. 

Roberts  v.  Anheuser-Busch  Assn.,  199. 

Robertson  v.  Coleman,  229. 

Robinson  v.  Hirschfelder,  72. 

Robinson  v.  Morgan,  116,  220. 

Robinson's  Appeal,  177,  204. 

Rock  Glen  Salt  Co.  v.  Segal,  314. 

Rodgers  v.  Jones,  263. 

Rodgers  v.  Phillips,  270. 

Rogers  v.  Burr,  244. 

Rogers  v.  Button,  227. 

Rogers  v.  Schneider,  136. 

Rogers  v.  Thomas,  132. 

Roland  M.  Baker  Co.  v.  Brown,  311. 

Rommel  v.  Wingate,  170. 

Rondeau  v.  Wyatt,  233,  236. 

Root  V.  French,  149,  226. 

Ropes  V.  Lane,  70. 

Roscorla  v.  Thomas,  186. 

Rosenthal  v.  Weir,  145. 

Roseter  v.  Reynolds,  97. 

Ross  V.  Cook,  248. 

Ross  V.  North rup  &  Co.,  295. 

Rossiter  v.  Merriman,  104. 

Rowley  v.  Bigelow,  74.  131,  138,  150. 


TABLE  OF  CASES  369 


[references  are  to  the  paces.] 


Ruben  v.  Lewis,  160,  164. 

Rucker  v.  Donovan,  143. 

Rudolph  Wurlitzer  v.  United  etc.  Co.,  317. 

Rummell  v.  Blanchard,  136,  320,  321. 

Russell  V.  Am.  Bell  Tel.  Co.,  209. 

Russell  V.  Betts,  244. 

Russell  V.  Carrington,  68. 

Russell  V.  Minor,  115. 

Rutan  V.  Hinchman,  241. 

Ryan  v.  Ulmer,  191. 

Ryan  v.  United  States,  257. 

Ryan  v.  Wayson,  102. 

Ryasse  v.  Reese,  248. 

Rylance  v.  Jas.  Walker  Co.,  55,  304,  326. 


St.  Paul  Roller  Mill  Co.  v.  Gt.  Western  Co.,  222. 

Salb  V.  Campbell,  283. 

Salmon  v.  Boykin,  170. 

Salmon  Falls  Mfg.  Co.  v.  Goddard,  252. 

Saltus  V.  Everett,  206,  212. 

Samuel  v.  Cheney,  229. 

Sanborn  v.  Flagler,  252. 

Sandford  v.  Brown  Bros.  Co.,  331. 

Sandford  v.  Wiggins  Ferry  Co.,  78. 

Sands  v.  Taylor,  123. 

Sanger  v.  Waterbury,  24. 

Sawyer  v.  Dean,  47,  57,  167. 

Sawyer  v.  Gerrish,  82. 

Saunders  v.  Jameson,  164. 

Sauer  v.  McClintic  etc.  Co.,  328. 

Saxe  v.  Penokee  Lumber  Co.,  153,  155. 

Schaefer  v.  Streider,  242. 

Schanz  v.  Bramwell,  301. 

Schechinger  v.  Gault,  282. 

Schindler  v.  Houston,  264,  265. 

Schindler  v.  Sperling,  330. 

Schloss  V.  Estey,  225. 

Schmertz  v.  Dwyer,  154. 

Schmidt  v.  Thomas,  268. 

Schneider  v.  Lezinsky,  289. 

Schneider  v.  O.  P.  R.  R.  Co.,  217. 

Schotsmans  v.  Lancashire,  138 

Schramm  v.  Boston  Sugar  Co.,  88 

Schreyer  v.  Kimball  Lumber  Co.,  49. 

Schrivener  v.  Gt.  No.  R.  R.  Co.,  119. 


370  TABLE  OF  CASES 

[references  are  to  the  pages.] 

Schutt  V.  Baker,  199. 

Schwab  V.  Oatman,  17. 

Schwartz  v.  Kohn,  297. 

Schweitzer  v.  Tracy,  226. 

Schweizer  v.  Tracy,  151. 

Scollans  v.  Rollins,  209,  210. 

Scott  V.  Buck,  171. 

Scott  V.  Wells,  27. 

Scotten  V.  Brown,  283. 

Scranton  v.  Clark,  190. 

Scranton  v.  Mechanics  Trading  Co.,  168,  198. 

Scudden  v.  Calais  Steamboat  Co.,  78. 

Seal,  Lawson  &  Co.  v.  Zell  &  Sons,  212. 

Seanor  v.  McLaughlin,  103,  105. 

Security  State  Bk.  v.  O'Connell  Lumber  Co.,  55. 

Sebben  v.  Trezevant,  281. 

Seeley  v.  Seeley-Howe  Co.,  149,  151. 

Segrist  v.  Crabtree,  103. 

Seixas  v.  Woods,  191. 

Selby  V.  Selby,  252. 

Seldomridge  v.  Bank,  65,  68,  179. 

Sewall  V.  Fitch,  236. 

Seward  v.  Jackson,  218. 

Sewing  Machine  Co.  v.  Bothame,  178. 

Seymour  v.  Cuchway,  248. 

Seymour  v.  Davis,  237. 

Shaw  V.  Railroad,  211. 

Shawhan  v.  Van  Nest,  98. 

Shearer  v.  Park  Nursery  Co.,  198. 

Sheffield  Shingle  Co.  v.  Bdgecomb  Mill  Co.,  188. 

Shelton  v.  Thompson-Bennett  Co.,  269. 

Shepard  v.  Burroughs,  142,  222. 

Sheperd  v.  Harrison,  55,  63. 

Sheppard  v.  Newhall,  220. 

Sherman  v.  Champlain  Transportation  Co.,  74,  189. 

Sherman  v.  Corn  Exch.  Bk.,  229. 

Sherwood  v.  Walker,  17,  182,  183. 

Shrimer  v.  Meyer,  17. 

Siegel  V.  Union  Ass.  Co.,  299. 

Silkman  Lumber  Co.  v.  Hunholtz,  265. 

Silverstein  v.  Kohler,  105. 

Slmis  V.  Wissel,  279. 

Simmons  v.  Swift,  24. 

Simpson  v.  Denver  &  R.  G.  R.  R.,  229. 

Sims  V.  Hutchins,  282. 

Singer  Mfg.  Co.  v.  Cheney,  94, 

Skillings  v.  Collins,  330. 


TABLE  OF  CASES  371 


[references  are  to  the  pages.] 


Skinner  v.  Griffiths,  53,  54,  163. 

Skinner  v.  Mich.  Hoop  Co.,  151. 

Skinner  etc.  v.  Lemmert  Furniture  Co.,  34. 

Skipper  v.  Stokes,  75. 

Slater  Brick  Co.  v.  Shakelton,  268,  270. 

Slaughter  v.  Marlow,  88. 

Sledge  V.  Oberehain,  218. 

Slidell  V.  McCoy's  Exs.,  12. 

Sloan  V.  McCarty,  101. 

Slocum  V.  Seymour,  248. 

Smalback  v.  Wolffe,  177. 

Smalley  v.  Hamblin,  241. 

Smith  V.  Aldrich,  98. 

Smith  V.  Bryan,  248. 

Smith  V.  Chadron  Bank,  149. 

Smith  V.  Clews,  206. 

Smith  V.  Gail,  135. 

Smith  V.  Goss,  143. 

Smtih  V.  Greenop,  120. 

Smith  V.  Gufford,  102. 

Smith  V.  Hale,  182. 

Smith  V.  Jones,  257. 

Smith  V.  Leighton,  245,  248. 

Smith  V.  Williams,  199. 

Smith  V.  Wisconsin  Investment  Co.,  24. 

Smith  &  Co.,  V.  Barker,  134. 

Smith  Co.  V.  Marano,  302,  304. 

Smith  Lumber  Co.  v.  Scott  County  Co.,  147. 

Smith-Premier  Co.  v.   Stidger,  227. 

Snee  v.  Prescott,  135. 

Snook  V.  Reglan,  178. 

Snowstorm  Co.  v.  Johnson,  244. 

Sonnerman  v.  Mertz,  281. 

Sour  Lake  Townsite  Co.  v.  Deutzer  Furn.  Co.,  90. 

Southern  Life  Ins.  Co.  v.  Cole,  244. 

Spalding  v.  Ruding,  224. 

Sparger  v.  Huffman,  111,  112. 

Spear  v.  Bach,  244. 

Spencer  v.  Hale,  269. 

Spiegel  V.  Lowenstein,  289. 

Spinney  v.  Hill.  241. 

Sprague  v.  Hosie,  244. 

Springfield  Shingle  Co.  v.  Edgecombe  Mill  Co.,  175. 

Stafford  v.  Pooler,  160. 

Stall  V.  Wilbur,  65. 

Standard  Wall  Paper  Co.  v.  Towns,  249. 

Staples  V.  Bradbury,  202. 


372  TABLE  OF  CASES 

[references  are  to  the  paces.] 

state  V.  Brewing  Co.,  35. 

State  V.  Buyer,  301. 

State  V.  Goss,  38. 

State  V.  Gruber,  51,  52. 

State  V.  J.  W.  Kelley  &  Co.,  51,  52. 

State  V.  Lotti,  11. 

State  V.  Mullen,  35,  19. 

State  V.  O'Nell,  28,  37. 

State  V.  Palmer,  36. 

State  V.  Rosenberger,  35,  36. 

State  V.  Wharton,  70. 

Stearns  v.  Drake,  185. 

Steele  v.  Anheuser-Busch  Co.,  283. 

Stephens  v.  Gifford,  215,  218. 

Stewart  v.  Heningson  Produce  Co.,  20,  54.  61. 

Steward  v.  Voll  &  Son,  297. 

StifEt  V.  Stiewell,  244. 

Stock  V.  Roth  Bros.,  288. 

Stollenwerck  v.  Thacher,  211. 

Storage  Battery  Co.  v.  Waterloo,  184. 

Storm  V.  Rosenthal,  326. 

Storm  V.  Smith,  190. 

Stover  V.  Flack,  242. 

Streeper  v.  Eckart,  218. 

Street  v.  Blay,  184. 

StrefE  V.  Colteaux,  252. 

Strubbee  v.  Trustees,  203. 

Stubbs  V.  Lund,  134,  137,  138. 

Studebaker  Bros.  v.  Mau,  207. 

Studebaker  Corp.  v.  Gollmar,  11, 

Sturdevant  v.  Ballard,  217. 

Sturgis  V.  Whistler,  184. 

Sublette  v.  Brewington,  200. 

Sullivan  v.  Sullivan,  51,  52. 

Sure  Seal  Co.  v.  Loeber,  296. 

Sursa  V.  Cash,  11. 

Sutton  V.  Rowley,  283. 

Swaney  v.  Alstott,  101. 

Swank  v.  Battaglia,  195. 

Swanwick  v.  Sothem,  25. 

Sweat  V.  Shumway,  174. 

Swett  V.  Colgate,  191. 


Talbut  V.  American  Ins.  Co.,  101,  109. 
Talcott  V.  Henderson,  147,  150. 
Tallman  v.  Franklin,  256. 


TABLE  OF  CASES  373 


[references  are  to  the  paces.1 

Tamvaco  v.  Lucas,  170. 

Tanner  v.  Scovell,  142. 

Tarling  v.  Baxter,  19,  22. 

Tatum  V.  Ackerman,  109. 

Taylor,  in  re,  120. 

Taylor  v.  Fall  River  Iron  Works,  42. 

Taylor  v.  First  Nat'l  Bank,  184. 

Tempest  v.  Kilner,  243. 

Tennessee  Co.  v.  Leeds,  174. 

Terry  v.  Wheeler,  30. 

Tetrault  v.  O'  Connor,  226. 

Texas  Lumber  Co.  v.  Rose,  88. 

Texas  Seed  etc.  Co.  v.  Sclinoutze,  36. 

Thacher  v.  Moors,  202,  203. 

Thayer  v.  Luce,  257. 

The  Iron  Cliffs  Co.  v.  Beibel,  53. 

Theiss  V.  Weiss,  157. 

The  Pennsylvania  Co.  v.  Holderman,  51. 

Third  Nat'l  Bk.  v.  Armstrong,  102. 

Third  Nat'l  Bank  v.  Smith,  51,  52. 

Thisler  v.  Keith,  199. 

Thomason  v.  Lewis,  104. 

Thompson  v   Baltimore  &.  Ohio  R.  R.  Co.,  113,  117. 

Thompson  v.  Brannin,  19,  24. 

Thompson  v.  Conover,  61,  147. 

Thompson  v.  Goffey,  148. 

Thompson  v.  Libbey,  168,  195. 

Thompson  v.  Miser,  296. 

Thompson  v.  Wedge,  147. 

Thompson  v.  Wilhite,  215,  216. 

Thornton  v.  Wynn,  184. 

Thrall  v.  Hill,  74. 

Thueby  v.  Rainbow,  178. 

Thurman  v.  Wilson,  88. 

Thurston  v.  Blanchard,  150. 

Ticknor  v.  McClelland,  215. 

Tiedman  v.  Knox,  211. 

Tisdale  v.  Harris,  244. 

Tison  &  Gordon  v.  Howard,  212. 

Titley  v.  Enterprise  Co.,  168,  193. 

Tobin  V.  Portland  Mills  Co.,  65.  202. 

Tolman  v.  American  Nat'l  Bk.,  229. 

Tomlinson  v.  Armour  Packing  Co.,  199. 

Tompkins  v.  Sheehan,  273. 

Townsend  v.  Hargraves,  18,  268,  278,  279. 

Towers  v.  Osborne,  233,  236. 

Treadwell  v.  Aydlett,  142. 

Trenholm  v.  Kloepper,  242. 


374  TABLE  OF  CASES 

[references  are  to  the  paces.] 

Trunkey  v.  Hedstrom,  97. 

Truxton  v.  Fait  &  Slagel,  225. 

Tufts  V.  Bennett,  87,  89. 

Tufts  V.  Burnley,  100. 

Tufts  V.  D'Arcambal,  102,  103,  178. 

Tufts  V.  Grewer,  47,  88. 

Tufts  V.  Griffin,  100. 

Tufts  V.  Sylvester,  140. 

Tull  V.  David,  255, 

Turk  V.  Carnahan,  102,  104. 

Turley  v.  Bates,  26,  27. 

Turner  v.  Cool,  245. 

Turner  v.  Planter's  Lumber  Co.,  248. 

Turner  v.  Trustees,  56. 

Tuthill  v.  Skidmore,  117,  118,  119,  123,  220. 

Tuttle  etc.  Co.  v.  Cooldale  Co.,  154. 

Tuttle  V.  White,  202. 

Twitchell-Champlin  Co.  v.  Radovsky,  32,  51,  302. 

Twyne's  Case,  212. 

Tyler  Co.  v.  Ludlow  Co.,  51,  52. 

Tyng  &  Co.  v.  Woodward,  325. 

u 

Ulen  V.  Kittredge,  254. 

Ullman  v.  Kent,  92. 

Ullman  v.  Warmer  Mach.  Co.,  57. 

Underwood  v.  Hossack,  254. 

Underwood  v.  Wolf,  174. 

Unexcelled  Fire  Works  Co.  v.  Polites,  52,  87. 

Union  Bank  v.  Coster,  255. 

United  States  v.  Malloy,  148. 

United  States  Commercial  Co.  v.  Joachimstahl,  328. 

United  States  Steel  Co.  v.  Great  Western  R.  R.,  143. 

Updike  v.  Henry,  75. 

Urbanski  v.  Kutinsky,  265,  307,  316. 


Valentine  v.  Brown,  214.  , 

Valeri  v.  Pullman  Co.,  11. 

Valley  v.  Montgomery,  58. 

Van  Brocklen  v.  Smeallie,  12,  17,  22,  90,  97,  124,  126,  128,  129,  326. 

Van  Duzor  v.  Allen,  207. 

Van  Valkenberg  v.  Mason,  170. 

Vaughan's  Seed  Store  v.  Stringfellow,  199. 

Vaughn  v.  Vaughn,  281. 

Velsian  v.  Lewis,  202,  203. 


TABLE  OF  CASES  375 


[references  are  to  the  pages.] 


Verplanck  v.  Verplanck,  13. 

Vogelsang's  Admr.  v.  Fisher,  111,  113,  117,  118. 

Volusia  County  Bank  v.  Bertola,  217. 

w 

Wade  V.  Moffet,  17,  121. 

Wade  V.  N.  Y.  &  O.  M.  Ry  Co.,  266. 

Wainscott  v.  Kellogg,  267. 

Wait  V.  Baker,  43,  49,  55. 

Waite  V.  McKelvey,  282. 

Waldron  v.  Chase,  68. 

Walker  v.  Detroit  Transit  Ry.  Co.,  209. 

Walker  v.  Nixon,  97. 

Walker  v.  Walker,  252. 

Walker  Bros.  v.  Daggett,  97. 

Walker  Furn.  Co.  v.  Dyson,  103. 

Walker's  Assee.  v.  Walker,  282. 

Wallace  v.  Breeds,  67. 

Wallace  v.  Long,  233. 

Wallack  v.  Clark  &  Son,  184. 

Wallace  v.  Coons,  92. 

Walsh  V.  Blakeley,  143. 

Walsh  V.  Leeper  Co.,  147. 

Walsh  V.  Taylor,  103. 

Walt!  V.  Gaba,  21,  61. 

Wanaraaker  v.  Yerkes,  115. 

Waples  &  Co.  v.  Overaker  &  Co.,  130. 

Ward  V.  Great  Atlantic  &  Pacific  Tea  Co.,  195. 

Ward  V.  Morchead  City  Sea  Food  Co..  199. 

Ward  V.  Taylor,  55. 

Ware  River  R.  R.  Co.,  v.  Vibbard,  111. 

Warren  v.  Buckminster,  90. 

Warren  Glass  Works  v.  Keystone  Co.,  193. 

Waschow  V.  Waschow,  119. 

Washington  Ice  Co.  v.  Webster,  266,  272. 

Waterman  v.  School  District,  331. 

Watkins  v.  Wyati,  82. 

Watson  V.  Hazelhurst,  72. 

Watson  V.  Spratley,  243. 

Watson  V.  Winston,  252. 

Watts  V.  Friend,  250. 

Way  V.  Martin,  197. 

Webb  V.  Baltimore  etc.  R.  R.  Co.,  245. 

Weber  v.  Weber,  282. 

Webster  v.  Zeilly,  237. 

Webster  Bros.  Milling  Co.  v.  Bingham,  4. 


376  TABLE  OF  CASES 

[references  are  to  the  paces.] 

Webster,  Gruber  Co.  v.  Dryden,  171. 

Weeks  v.  Crie,  271,  273,  274. 

Weir  V.  Hudnut,  277. 

Weiss  V.  Swift  &  Co.,  195. 

Welch  V.  Bigger,  11. 

Welch  V.  Brainerd,  258. 

Welch  V.  Spies,  68. 

Weld  V.  Came,  21. 

Wellden  v.  Witt,  176. 

Wells  V.  Maley,  89. 

Welshausen  v.  Parker  Co.,  199, 

Welter  v.  Hill,  75,  85. 

Wender  Coal  Co.  v.  Louisville  Property  Co.,  207. 

Wertheimer  etc.  Co.  v.  Faris,  149,  151. 

Wesoloski  v.  Wysoski,  24. 

West  V.  Emery,  185. 

West  End  Mfg.  Co.  v.  Warren  Co.,  194,  297. 

Western  Commercial  Co.  v.  Western  Wholesale  Drug  Co..  183. 

Western  Mining  Co.  v.  Quinn,  215. 

Western  Union  Sewing  Machine  Co.  v.  Sachs,  176. 

West  Jersey  R.  R.  Co.  v.  Trenton  Car  Works,  75. 

Westminster  Metal  etc.  Co.  v.  Coffman,  328. 

Westmoreland  Coal  Co.  v.  Syracuse  Lt.  Co.,  30,  31,  302. 

Weston  V.  B.  &  M.  R.  R.  Co.,  199. 

Wetherill  v.  Neilson,  186. 

Wetkopsky  v.  New  Haven  Gas  Lt.  Co.,  289,  327. 

W.  G.  Ward  Co.  v.  American  etc.  Co.,  306. 

Wheaton  etc.  Co.  v.  Noye  etc.  Co.,  193. 

Wheeler  v.  Becker,  75. 

Wheeler's  Exrs.  v.  Wheeler,  74. 

Wheeling  &  L.  E.  R.  R.  Co.  v.  Koontz,  136. 

Whitcomb  v.  Whitney,  18. 

White,  ex  parte,  6. 

White  V.  Dahlquist,  255,  262, 

White  vs.  Foster,  246,  248. 

White  V.  Gainer,  122. 

White  V.  Lansing  Chem.  Co.,  298. 

White  V.  Mitchell,  139,  143. 

White  V.  Oakes,  177,  195. 

White  V.  Schweitzer,  51. 

White  V.  Solomon,  93,  100. 

White  V.  Welsh,  117. 

White  V.  Wilks,  68. 

White  Auto  Co.  v.  Dorsey,  331,  332, 

Whitehead  v.  Anderson,  14.j,  145,  146. 

Whitehouse  v.  Frost.  67,  68. 

Whitlock  v.  Auburn  Lumber  Co.,  101. 


TABLE  OF  CASES  377 


[references  are  to  the  paces.] 


Whitney  v.  McLean,  167, 

Wiant  V.  Hayes,  84. 

Wiedeman  v.  Keller,  196. 

Wiger  V.  Carr,  242. 

Wiggins  V.  Snow,  102. 

Wigton  V.  Bowley,  55. 

Wilcox  etc.  Co.  v.  Green,  268. 

Wilk  V.  Key,  Simmons  &  Co.,  226. 

W^ilkinson  v.  Heavenrich,  252. 

Wilkinson  v.  Holiday,  21,  28. 

Wilkinson  v.  Taylor  Mfg.  Co.,  257. 

Wilks  V.  Atkinson,  234. 

Willard  v.  Higdon,  289. 

Willett  V.  Smith,  262. 

Williams  v.  Allen,  157. 

Williams  v.  Chapman,  76. 

Williams  v.  Jackman,  78. 

Williams  v.  Moore,  115. 

Williams  v.  Robinson,  252. 

Williamson  v.  Allison,  186. 

Willinghams  Sons  v.  McGuffin,  211. 

Willis  V.  Ellis,  256,  260. 

Willman  Mercantile  Co.  v.  Fussy,  55. 

Willson  V.  Force,  110. 

Willston  Coal  Co.  v.  Franklin  Paper  Co.,  148. 

Welshausen  v.  Parker  Co.,  186. 

Wilson  V.  International  Ry.  Co.,  298. 

Wilson  V.  Lawrence,  193. 

Wilson  V.  Lewiston  Mill  Co.,  251. 

Wilson  V.  Wagar,  148. 

Wilstock  V.  Heyd,  256. 

Winchester  Wagon  Works  v.  Carmen,  206. 

Wingard  v.  Banning,  120. 

Winslow  V.  Harriman  Iron  Co.,  92,  130. 

Winslow  V.  Lombard,  196. 

Winside  Bank  v.  Lound,  157. 

Wisconsin  Ins.  Co.  v.  Filer,  118. 

Wisconsin  Red  Brick  Co.  v.  Hood,  193. 

Wiseman  v.  Vandeputt,  131. 

Witson  V.  Lewison  Mill  Co.,  255. 

Wolf  V.  Marsh,  111. 

Wolfstein  v.  People,  183. 

Wolverine  Spice  Co.  v.  Fallow,  296. 

Woodland  Co.  v.  Mendenhall,  112. 

Wood  V.  Bell,  77. 

Wood  V.  Ross,  193. 

Wood  V.  Territory  of  Oregon,  10. 


378  TABLE  OF  CASES 

[references  abk  to  the  paces.] 

Wood  &  Co.  V.  Roach,  69. 

Woodruff  V.  Noyes,  143. 

Woods  V.  Cramer,  88. 

Woods  V.  Russell,  76. 

Woolsey  v.  Axton  &  Son,  113. 

Wooton  V.  White,  245. 

Worcester  Mfg.  Co.  v.  Waterbury  Press  Co.,  184. 

Word  V.  Cavin,  189. 

World  Pub.  Co.  v.  Hull,  149. 

Wright  V.  Andrews   Co.,  126,  299,  324. 

Wright  V.  Davenport,  184. 

Wright  V.  Solomon,  206. 

Wright  V.  Vaughn,  72. 

Wrigley  v.  Cornelius,  91,  92. 

W.  T.  Wilson  Co.  V.  Central  Nat'l  Bank,  55. 


Yates  V.  Russell,  202. 
Young  V.  Ferguson,  19. 
Young  V.  Ingolsbe,  18,  277. 
Yukon  River  Co.  v.  Grotto,  78. 


Zalinski  v.  Central  Vermont  Ry.,  164. 

Zann  v.  Haller,  252. 

Zeuske  v.  Zeuske,  283. 

Zielinski  v.  Potter,  194. 

Zimmeister  v.  Rock  Island  etc.  Co.,  88. 

Zimmerman  v.  Morrow,  197. 

Zimmern's  Coal  Co.  v.  L.  &  N.  R.  R.,  56. 


INDEX 


[references  are  to  the  paces! 

A 

ACCEPTANCE— 
of  title,  95,  100. 
under  Statute  of  Frauds,  262. 
ACQUISITION  OF  GOODS,  72. 
ACTIONS— 

breach  of  contract  by  buyer,  90,  99,  110. 

by  seller,  152. 
breach  of  warranty,  184,  199. 
for  purchase  price,  92,  99,  109,  147. 
after  possession  retaken,  106. 
after  title  passed,  109. 
before  possession  given,  121. 
before  title  passed,  92. 
effect  on  lien,  119. 
effect  on  right  to  possession,  103. 
for  possession,  in  general,  102. 

by  second  purchaser  from  seller,  102. 
by  tenant  in  common,  64N. 
by  buyer,  152,  176,  178. 
for  value  of  goods,  148. 
AGENT— 

acceptance  by,  268. 
payment  by,  278. 
sale  by,  71N,  203. 
signature  by,  252. 
APPROPRIATION  OF  GOODS,  40. 
ASSIGNMENT,  12. 
ATTACHMENT— 

as  affecting  lien,  142. 

stoppage  in  transitu,  142, 
as  affecting  title,  218. 


B 


BAILMENT,  3,  6. 
BARTER,  8,  241. 

379 


380  INDEX 

[references  are  to  the  pages] 

BILL  OF  LADING— 

as  affecting  retention  of  possession,  219. 

as  affecting  title,  55,  60,  62,  223. 
stoppage  in  transitu,  221. 

as  indicative  of  title,  210. 
BONDS,  209. 
BREACH  OF  CONTRACT-^ 

(See,  Actions.) 

c 

CARRIER— 

delivery  to,  as  affecting  inspection,  161. 
as  affecting  seller's  lien,  113. 
as  satisfying  Statute  of  Frauds,  269. 
as  affecting  title,  29,  40,  49,  60,  161. 
lien  of,  143. 
CASH  SALES,  33. 
CHOSES  IN  ACTION,  13,  243. 
C.  O.  D.,  35. 

CONDITIONAL  SALE,  99,  102,  106,  206. 
CONDITIONS,  29,  32,  39,  157,  168,  173,  180N. 
CONSENT— 

(See  Intent.) 

to  passing  of  title,  95,  100. 
CONSIDERATION,  8,  17,  185. 
CONTRACT— 

(See  Statute  of  Frauds.) 
essential  to  a  sale,  14,  227. 
of  sale,  232. 

person  contracted  with,  227. 
separate,  249,  273. 
to  manufacture,  233. 
CREDIT— 

as  affecting  right  to  sue,  109. 
lien,  115. 
CREDITORS— 
rights  of,  218. 

under  Statute  of  Frauds,  281. 

D 

DAMAGES,  94,  153,  197. 

(See,  Actions.) 
DELIVERY— 

(See,  Lien,  Stoppage  in  transitu,  Transit) 
as  affecting  title,  17,  27,  29,  32.  60. 
as  condition  precedent  to  suit,  121. 
to  carrier  (see  Carrier). 


INDEX  381 

[references  are  to  the  pages] 

E 


ESTOPPEL,  68,  121,  207,  208,  212. 
EXAMINATION  (see  Inspection). 
EXCHANGE— 

what  is,  8. 

within  Statute  of  Frauds,  241. 

F 

FIXTURES,  246. 

FOOD,  WARRANTY  OF,  195. 

FRAUD,  212,  225. 

as  affecting  lien,  114. 
title,  203. 

as  ground  for  rescission,  148. 
FRAUDS  (See,  Statute  of  Frauds). 
FUNGIBLE  GOODS,  63,  68,  179. 
FUTURE  GOODS,  70. 

G 

GIFT,  8,  17. 

GOODS  NOT  IN  EXISTENCE,  70. 

GOODS,  WARES  AND  MERCHANDISE,  243. 

GRASS,  246. 

GROWING  CROPS,  245. 


IDENTIFICATION  OF  GOODS,  40,  168,  182. 
INCORPOREAL  PROPERTY,   12,  243. 
INFANTS,  AVOIDANCE  OF  CONTRACT  BY,  229. 
INSANE  PERSONS,  AVOIDANCE  OF  CONTRACT  BY,  230. 
INSOLVENCY— 

as  affecting  lien,  116. 
as  evidence  of  fraud,  150. 
as  permitting  stoppage  in  transitu,  132. 
as  justifying  resale,  125. 
evidence  of,  118,  133. 
INSPECTION,  157,  166. 
INTENT— 

as  to  character  of  transaction,  4,  11. 
person  contracted  with,  227. 
Statute  of  Frauds,  265,  272. 
title,  19,  65,  72. 
warranty,  186. 
conflicting,  60. 


382  INDEX 

[references  are  to  the  pages] 

L 

LIEN— 

carrier's,  143. 
seller's, 

what  is,  111. 

enforcement  of,  122. 

loss  of,  112. 

M 

MANUFACTURE  OF  GOODS— 

after  buyer's  breach,  90. 

contract  for,  233. 

effect  on  title,  75. 
MARKET  VALUE— 

as  showing  damages,  89. 

recovery  of,  148. 
MEMORANDUM,  250. 

contents  of,  258. 

signing  of,  252. 
MONEY— 

as  characterizing  transaction,  8. 

passes  free  from  equities,  209. 

recovery  of,  157,  177. 

N 

NEGOTIABLE  INSTRUMENTS,  209,  228N,  243. 

NON-EXISTENT  GOODS,  70. 

NOTICE— 

of  resale,  90,  91,  129. 

of  title  in  another,  225. 

Hnder  stoppage  in  trcmsitu,  144,  222. 

0 

OPINIONS,  172,  188. 
OWNERSHIP,  MEANING  OF,  2,  18. 


PAYMENT  (See,  Conditional  Sale)— 
as  affecting  stoppage  in  transitu,  276. 

title,  76. 
under  Statute  of  Frauds,  275. 

PERSON  CONTRACTED  WITH,  227. 

PLEDGE,  3,  8. 


INDEX  383 


[references  are  to  the  pages] 


PLEDGEE,  RIGHTS  OF,  203,  206,  223. 
POSSESSION— 

(See,  Lien,  Stoppage  in  transitu.  Transit.) 

as  affecting  title,  17,  29,  32,  212. 

as  indicating  title,  201. 

buyer's  right  to,  176,  178. 

delivery  of,  113,  218,  264. 

lien  by,  112. 

recovery  of,  102,  106,  130,  134,  147,  201. 

retention  of,  212. 

return  of,  177. 
PRESUMPTIONS— 

of  intent  as  to  title,  19,  49,  54,  66. 

rebuttal  of,  38,  54,  57,  59. 
PRICE  (See,  Actions),  1,  8. 

Statute  of  Frauds,  249. 
PUBLIC  POLICY,  186,  207,  214. 
PURCHASERS  FROM  ONE  WITHOUT  TITLE,  201. 

R 

REBUTTAL  OF  PRESUMPTIONS,  38,  54,  59. 
RECEIPT,  UNDER  STATUTE  OF  FRAUDS,  262. 

(See,  Carrier.) 
RECOVERY  OF  MONEY  PAID,  157,  177. 

(See,  Actions.) 
RECOVERY  OF  POSSESSION— 

(See,  Actions.) 

after  title  passed,  102,  134,  147. 

by  stoppage  in  transitu,  130. 

effect  on  right  to  price,  106. 

from  third  persons,  201. 
RESALE,  89,  122. 

notice  of  (See,  Notice.) 
RESCISSION,  126,  146,  148,  225. 
RETENTION  OF  POSSESSION,  212. 
RETURN  OF  GOODS  BOUGHT,  7,  177. 

of  money  paid,  103. 

s 

SALE— 

by  agent,  203. 

by  one  not  in  possession,  219. 

by  one  not  owner,  70,  201. 

by  one  having  voidable  title,  225. 

contract  for,  14,  227,  232. 


384  INDEX 

[references  are  to  the  paces] 

SALE— Cont. 

definition  of,  1. 

distinguished  from  other  transactions,  3,  232. 
on  approval,  7. 
subject  matter  of,  12. 
with  right  to  return,  7. 
SELLER'S  LIEN  (See,  Lien). 
SEPARABLE  CONTRACTS,  249,  273. 
SIGNATURE  (See,  Statute  of  Frauds). 
SPECIFICATION  OF  GOODS,  40,  168,  182. 
SPECIFIC  PERFORMANCE,  152. 
STATUTE  OF  ELIZABETH,  212. 
STATUTE  OF  FRAUDS,  231. 
acceptance,  262. 
amount  involved,  249. 
effect  of,  278. 
goods,  wares,  etc.,  243. 
memorandum,  250. 
contents  of,  258. 
signature,  252. 
payment,  275. 
receipt,  262. 
signature,  252. 
STOCK  CERTIFICATES,  209,  243. 
STOPPAGE  IN  TRANSITU,  130. 
effect  of,  146. 
how  effected,  144. 
loss  of  right,  220. 
SUIT  (See,  Actions). 


TITLE— 

acceptance  of,  95,  100. 

acquisition  of,  by  seller,  72. 

delivery,  as  affecting,  17,  27,  29,  32,  60. 

fungible  goods,  63. 

intent,  as  to,  16,  19. 

lacking  in  seller,  70,  201. 

meaning  of,  2,  18. 

presumptions  as  to,  19. 

right  to  acquire,  176,  208,  220. 

voidable,  225. 

warranty  of,  189. 

when  passes,  16. 
TITULAR  ACTIONS,  152  176,  178, 

(See,  Actions.) 


INDEX  385 

[references  are  to  the  pages] 


TRANSIT,  135. 

(See,  Stoppage  in  trcmsitiu) 
TREES,  246. 
TRESPASS  (See,  Actions) 


u 


UNDIVIDED  INTEREST,  178. 
UNSPECIFIED  PROPERTY,  40,  63. 
(See,  Identification.) 


VALUE,  RECOVERY  OP,  148. 
VENDOR'S  LIEN  (See,  Lien). 
VOIDABLE  TITLE,  225. 

w 

WAIVER— 

of  breach  of  warranty,  184N. 

of  performance  of  conditions,  103,  174. 

of  right  to  inspect,  161,  163,  167. 
WARRANTY,  168N,  175. 

breach  of,  179. 

effect,  182,  197. 

implied,  181N,  189. 

person  benefited,  199. 

theory  of,  185. 

time  of  making,  196. 

what  is,  180,  185,  187. 
WRITING}— 

(See,  Statute  of  Frauds.) 


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